KJCKorea
Journal Central

@article{ART001554137},
author={류하백},
title={Evaluation of Eminent Domain Legislation in South Korea},
journal={Public Land Law Review},
issn={1226-251X},
year={2011},
volume={53},
pages={25-86}

TY - JOUR
AU - 류하백
TI - Evaluation of Eminent Domain Legislation in South Korea
JO - Public Land Law Review
PY - 2011
VL - 53
IS - null
PB - Korean Public Land Law Association
SP - 25
EP - 86
SN - 1226-251X
AB - The Korean Land Expropriation Act of 1962(KLEA), succeeded the outline of the Japanese Imperialist Land Expropriation Act of 1900(JILEA), not of 1951(JLEA) as a general statute concerning compulsory land acquisition for public use, was enacted by the Military Regime, that is, is inconsistent with the democratic Constitution of Korea. Several provisions of the amended law of JLEA(1967) in Japan, was misunderstood, was amended as those of KLEA of 1971, and thereof have been distorted. This study is mainly focused on evaluating three topics concerned in public projects, that is, the acquisitions by negotiation, public use requirements and just compensation for the real property acquired in accordance with the democratic Constitution. The 2nd chapter covers that Japanese Government Regulation(Cabinet Order) governs the requirements for the real property acquisition policy, not to affect the essential substances of private property, the processing of a project recognition necessary for conforming a grant of authority to determine a contemplated project for public use in the condemnation proceedings in JLEA and the Town Planning and Zoning Act(JTPZA) of 1968, and the amount of just compensation therefor to guarantee the current value. The 3rd chapter reviews the processing of legislations in the individual eminent domain laws in Korea, succeeded the misinterpreted and distorted provisions of three topics of JLEA and JTPZA. The 4th chapter focuses on several problems of unconstitutionality violating the Constitution provided for guarantee of property rights and construing It to be a virtual nullity by compulsory provisions of every condemnation law. The 5th chapter evaluates the failures of providing preventive provisions against the acquisitions by negotiation for owners, the compulsory provisions of every eminent domain law enabling to exercise eminent domain power notwithstanding lack of satisfying the ends “public use” requirements, and the amount of just compensation should be the amount based on officially assessed land price designed under a substantial land use regulation in the zoning, on an affirming hypothesis that windfall should be excluded from, which makes arbitrary discrimination against the owners(the expropriated), unable enough to acquire alternative land nearby which is equivalent for the taken, may result in the denial of the guarantee with the Constitution. The last chapter reminds the duties of Constitutional Court and suggests the author's opinions about three topics reviewed above.
KW - 재산권 보장(guarantee of private property rights);재산권의 사회적 제약(social obligation inherent in property rights);공공필요성의 요건(public use requirement);정당한 보상(just compensation);수용권 남용(eminent domain abuse)
DO -
UR -
ER -

류하백. (2011). Evaluation of Eminent Domain Legislation in South Korea. Public Land Law Review, 53, 25-86.

류하백. 2011, "Evaluation of Eminent Domain Legislation in South Korea", Public Land Law Review, vol.53, pp.25-86.

류하백 "Evaluation of Eminent Domain Legislation in South Korea" Public Land Law Review 53 pp.25-86 (2011) : 25.

류하백. Evaluation of Eminent Domain Legislation in South Korea. 2011; 53 25-86.

류하백. "Evaluation of Eminent Domain Legislation in South Korea" Public Land Law Review 53(2011) : 25-86.

류하백. Evaluation of Eminent Domain Legislation in South Korea. Public Land Law Review, 53, 25-86.

류하백. Evaluation of Eminent Domain Legislation in South Korea. Public Land Law Review. 2011; 53 25-86.

류하백. Evaluation of Eminent Domain Legislation in South Korea. 2011; 53 25-86.

류하백. "Evaluation of Eminent Domain Legislation in South Korea" Public Land Law Review 53(2011) : 25-86.