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@article{ART001664824},
author={Hwan Myoung Pyo},
title={Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.},
journal={Public Land Law Review},
issn={1226-251X},
year={2012},
volume={57},
pages={123-146},
doi={}

TY - JOUR
AU - Hwan Myoung Pyo
TI - Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.
JO - Public Land Law Review
PY - 2012
VL - 57
IS - null
PB - Korean Public Land Law Association
SP - 123
EP - 146
SN - 1226-251X
AB - This paper investigates about the problem of leading case of constitutional court on taking in art. 23 sec. 3 and presents its new direction of interpretation. Investigation about taking clause starts from the problem on which theory interpretation on property right clause is base, that is, ‘separate theory’ or ‘boundary theory’. Korean constitutional court is base on ‘separate theory’ in several leading cases regarding property right in art. 23 sec. 3. Korean constitutional court is forming the system of interpretation on taking which start from separating of the ‘content clause’ and the ‘taking clause’ in property right clause. According to this protection system of property right, important to discuss regarding art. 23 sec. 3 is the requisite of taking against the property right formed by the clause of art. 23. sec. 1 and sec. 2 To investigate requisite of taking means the essentially purpose of protection of property right put on the protection of continued existence of property right in art. 23. sec. 1. Therefore, the requisite of taking against existence of property right is strictly asked. If the requisite of taking is fullfilled, the protection of the existence of property right is transfer to the protection of a value of property right, which constitutionmaker is considering as other form of protection of property right. To become a problem regarding the requisite of taking is very important, how forms of restriction of property right in art. 23 sec. 3 constitution of korea is interpreted. Constitutional court don't clear it. In this paper it is considered as the same with taking in art. 14 sec. 3 of germany constitution. From the result of this interpretation this paper has solved the problem of connection clause about art. 23 sec. 3. About the concept of public necessity this paper has defined as narrower concept than public welfare in art. 37 sec. 2. The criterion of judge about what the public necessity is, or not, is base on the principle of excess prohibition. This paper presents against the leading case of constitutional court which don't clear compensation between the content clause asking compensation and taking, just compensation applies on the taking and fair compensation on the content clause asking duty of compensation.
KW - 재산권(Property right);분리이론(Seperate theory);공용수용(Taking);공공필요(Public necessity);정당한 보상(Just compensation);결부조항(Connection Clause);수용조항(Taking Clause).
DO -
ER -

Hwan Myoung Pyo. (2012). Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.. Public Land Law Review, 57, 123-146.

Hwan Myoung Pyo. 2012, "Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.", Public Land Law Review, vol.57, pp.123-146. Available from: doi:

Hwan Myoung Pyo "Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court." Public Land Law Review 57 pp.123-146 (2012) : 123.

Hwan Myoung Pyo. Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.. 2012; 57 123-146. Available from: doi:

Hwan Myoung Pyo. "Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court." Public Land Law Review 57(2012) : 123-146.doi:

Hwan Myoung Pyo. Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.. Public Land Law Review, 57, 123-146. doi:

Hwan Myoung Pyo. Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.. Public Land Law Review. 2012; 57 123-146. doi:

Hwan Myoung Pyo. Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court.. 2012; 57 123-146. Available from: doi:

Hwan Myoung Pyo. "Study on the Taking Clause in Constitution and the Theory Formed by Constitutional Court." Public Land Law Review 57(2012) : 123-146.doi: