@article{ART001715604},
author={Namchul Chung},
title={Taking and Regulation in the U.S. Constitution},
journal={Public Land Law Review},
issn={1226-251X},
year={2012},
volume={59},
pages={81-110}
TY - JOUR
AU - Namchul Chung
TI - Taking and Regulation in the U.S. Constitution
JO - Public Land Law Review
PY - 2012
VL - 59
IS - null
PB - Korean Public Land Law Association
SP - 81
EP - 110
SN - 1226-251X
AB - Nowadays still, there remain unsolved difficult problems in terms of the theory of takings despite of remarkable achievement in legal theory of academy and judicial precedents of the Constitutional Court and the Supreme Court of Korea. For example there are the legal problems, such as distinguishing compensable eminent domain from uncompensated police power, the interpretation of “limitation” and “use” of private property for public necessity in Article 23 III of the Korean Constitution, the estimation of public interest (“public necessity”), the expansion of compensation and so on. First of all diverse takings exist in decisions of the U.S. Supreme Court. In my opinion the Regulatory Taking can be related to the “limitation” of private property for public necessity, and Temporary Taking and Partial Taking are related to the “use” of private property for public necessity according to Article 23 III of the Korean Constitution. In addition, a variety of test standards, such as physical invasion, diminution of value, and noxious use etc in the decisions of U.S. Supreme Court, concerning the distinction between compensable eminent domain and uncompensated regulation. However, it depends on the ad hoc balancing and discretion of courts in deciding what is taking or too regulation, especially after acknowledgment of the Regulatory Taking that is introduced for expansion of compensation. It seems to be the debate on the test standard “special sacrifice” (“Sonderopfer” in German) for just compensation in Korea. The U.S. Supreme Court has broadly the concept of “public use”, even in eminent domain for private person (private corporation) like in Kelo v. City of New London. This decision became controversial and was criticized. In conclusion the theory of taking (eminent domain) in the U.S. give us inspiringly new solutions, relating to the interpretation of our Constitution.
KW - 재산권(property);공용수용(taking);정당한 보상(just compensation);물리적 점유(physical occupation);규제적 수용(regulatory regulation);공적 사용(public use)
DO -
UR -
ER -
Namchul Chung. (2012). Taking and Regulation in the U.S. Constitution. Public Land Law Review, 59, 81-110.
Namchul Chung. 2012, "Taking and Regulation in the U.S. Constitution", Public Land Law Review, vol.59, pp.81-110.
Namchul Chung "Taking and Regulation in the U.S. Constitution" Public Land Law Review 59 pp.81-110 (2012) : 81.
Namchul Chung. Taking and Regulation in the U.S. Constitution. 2012; 59 81-110.
Namchul Chung. "Taking and Regulation in the U.S. Constitution" Public Land Law Review 59(2012) : 81-110.
Namchul Chung. Taking and Regulation in the U.S. Constitution. Public Land Law Review, 59, 81-110.
Namchul Chung. Taking and Regulation in the U.S. Constitution. Public Land Law Review. 2012; 59 81-110.
Namchul Chung. Taking and Regulation in the U.S. Constitution. 2012; 59 81-110.
Namchul Chung. "Taking and Regulation in the U.S. Constitution" Public Land Law Review 59(2012) : 81-110.
