@article{ART001346684},
author={류하백},
title={The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation},
journal={Public Land Law Review},
issn={1226-251X},
year={2009},
volume={44},
pages={1-40}
TY - JOUR
AU - 류하백
TI - The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation
JO - Public Land Law Review
PY - 2009
VL - 44
IS - null
PB - Korean Public Land Law Association
SP - 1
EP - 40
SN - 1226-251X
AB - Article 23(1) of the Constitution guarantees private property rights of all citizens, Article 23(3) goes on to provide that condemnation of property rights for public use shall be governed by law and upon payment of just compensation therefor. In such a case it has also been provided that it should not affect the essential substances of such rights and liberties recognized by the Constitution.
The Constitution provides that private property shall be taken for public use and be governed by law, from which the Public Land Aquisition and Compensation Act(PLACA) enacted provides condemnation proceedings, which a project initiator should take the recognition of project whether his or her contemplated project might be for public use or not.
The condemnation of private property rights may satisfy the Public Use Requirement of the Constitution when the proportional relationship may be maintained relationally between the condemnor and the land owners in his or her contemplated project.
But by virtue of enacted land development laws it is imposed for individuals, companies, or public entities to enable to exercise eminent domain power artificially in a contemplated project, which PLACA forces to consider for public use notwithstanding lack of satisfying it, which the means “condemnation” as compulsory land purchase method(the exercise of eminent domain power) must consider to satisfy the ends “public use” requirement of the Constitution.
And those provisions give him or her a naked grant of authority to determine a contemplated project to take lands needed without any scrutiny of the proportional relationship and due process clause for landowners, which denies the guarantee of the Constitution.
Although the planning agency exercising its administrative discretion considers it within the scope of planning discretion to determine a land development project to be taken lands needed by the project initiator, it also has the limit exercising it, where it is required of reasons for fairness and equity between the project initiator and landowners. Meanwhile the Supreme Court and the Constitutional Court may arbitrarily evade a judicial review of the agency actions as well as a means-ends test of the legislation imposed by virtue of provisions of which laws governing the physical taking of property is allowed neither notices nor hearings for the landowners, and may be confused within the discretion of court only in land-takings to enable to exercise the means (the power to condemn) to achieve the ends intended, by which method and factors to consider to meet public use generally.
The restriction of private property rights could only be imposed by virtue of provisions of the law specifically enacted for public use determined by the Constitution and only to the extent of necessity, and it should not affect the essential substances of private property rights guaranteed by the Constitution, if not, it is inconsistent with the provisions of the Constitution.
KW - 공공필요(public use);사업인정(recognition of project);재산권의 본질적 내용(the essential substances of private property rights);비례원칙(the principle of proportionality);적법절차보장(due process clause);사법심사(judicial review)
DO -
UR -
ER -
류하백. (2009). The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation. Public Land Law Review, 44, 1-40.
류하백. 2009, "The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation", Public Land Law Review, vol.44, pp.1-40.
류하백 "The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation" Public Land Law Review 44 pp.1-40 (2009) : 1.
류하백. The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation. 2009; 44 1-40.
류하백. "The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation" Public Land Law Review 44(2009) : 1-40.
류하백. The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation. Public Land Law Review, 44, 1-40.
류하백. The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation. Public Land Law Review. 2009; 44 1-40.
류하백. The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation. 2009; 44 1-40.
류하백. "The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation" Public Land Law Review 44(2009) : 1-40.
