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A Public Law Review on compensation of Land for the Public Works

  • Public Land Law Review
  • Abbr : KPLLR
  • 2010, 48(), pp.131-152
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

신평우 1

1입법학연구소

Accredited

ABSTRACT

The expropriation and use of the Property Right is inevitable for public needs, but the guarantee of citizens' Property Right is the value that should be kept as the highest priority. The Guarantee of the Property Right is provided as a compensation is indispensible for giving citizens a trust in government policy as well as the early expansion of the infrastructure and the saving of construction costs. Like this, the compensation is characterized by having to seek two purposes of protecting citizens' Property Right and accomplishing public works smoothly at the same time. The Korean Constitution guarantees Koreans Property Rights through Article 13.2, Article 119.1. Also the Constitutional Court has made the delicate theories over the judicial precedents. There are many different types of Property Rights in the Korean Constitution. Among them, however, Land Property Rights is considered more important than the others by people who own or hold Property. In these days, of course, Intellectual Property Rights is getting more and more important. However, Land has been a base for our lives and for productions, and the material basis for materializing freedom, so its value has been considered great so far. In addition, an increase in population and Industrialization have been making its value bigger. In conclusion, it can be said that Land Property Rights is more important than the others. Land has the stronger social and public character than the other properties, so the stronger violation for public use can be allowed. Among these violations for public use, the expropriation of land that brings the loss of land property rights seems to be the biggest burden to the owners. When the expropriation of land is needed for the public use, the most desirable way is to get the land through the consultation between the people for public utilities and the land owners. If this consultation, However, wouldn't be made, the expropriation of land could be forced for public use. As the expropriation of land is forced for public use, the loss is repaid. The Constitution stipulates the reasonable repayment about it. However, Korean Loss Repayment Act seems to follow a bit different way from the Constitution. That is, the reasonable repayment has not been achieved in many ways. The real meaning of Property Rights that the Korean Constitution guarantees is in the original property continuance guarantee. Therefore, even though the original property continuance guarantee is changed into the worth continuance guarantee for the public purpose, the idea should be kept. That is, all compensation conditions like the estimated process and way of compensation money should be taken in the situation of the original property continuance guarantee.

Citation status

* References for papers published after 2022 are currently being built.