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A Study on Unconstitutionality of Public Necessity in Development Projects

  • Public Land Law Review
  • Abbr : KPLLR
  • 2013, 63(), pp.119-140
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim,Jong Ha 1,  Jae-Ho Kim 2

1목원대학교
2충남대학교

Accredited

ABSTRACT

This study explores the issue of public necessity in development projects, under the recognition that the concept of public interest and public necessity need to change along with the economic and social circumstances that surround us. When controlling and reviewing legislative discretion, the Korean Constitutional Court relies on ‘obviousness’ criteria or ‘relative reasonableness’ criteria. Public necessity and public interests in modern societies, however, do not lie outside the scope of our prediction, which makes the relative reasonableness criteria more appropriate than obviousness criteria. It is the opinion of the author that the review standard for public necessity should be made more specific, so as to reflect the original intent of ‘existence guarantee of property rights’. Therefore, it would be more appropriate to specify the review standards for public necessity as the following: 1) public nature of the purpose 2) necessity of expropriation 3) minimality of expropriation, 4) balance of legal interests, 5) continuity of public interest. In particular, the ‘continuity of public interests’ criteria must be met when legally granting expropriation rights to a private operator of a public project by law. We need to reconsider the scope of public project under the Act on Acquisition of and Compensation for Land, etc. for Public Projects, as well as public projects under other individual laws. The current economic situation is different from the past when unauthorized houses used to sprawl, in terms of the social and economic position and attitude towards houses. The necessity of developing new towns to accommodate population from major cities such as Seoul has also changed from the past in its magnitude. Therefore, the public necessity of housing site development and new town development projects need to be reconsidered, and the relevant laws should be refined. Lastly, the abstract legal provisions on public needs should be specified. The continuity of public interest can be sufficiently specified in the relevant laws, and the relevant laws need to be revised to adopt such specification.

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