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Legal Issues Over Expropriation by Private Persons

  • Public Land Law Review
  • Abbr : KPLLR
  • 2015, 71(), pp.207-226
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Eunhye Jang 1

1한국법제연구원

Accredited

ABSTRACT

Following the Constitutional Court decision, private corporate is allowed to compulsorily expropriate under certain conditions by exercising the right of eminent domain which is ensured by the Constitution. Even though there is no legal issues over the fact that a private person could expropriate land under the constitution ‘public interest’, which the private owner insists for the reason of expropriation, might not be recognized as ‘public need.’ Despite the fact that a private person is recognized as the subject of eminent domain under the law, it should not invested the right of expropriation if it is not satisfied the requirements of ‘public need’ which is equivalent to a public work by the government or authorities. Not investing a private person the right of eminent domain does not lead to measures infringing interest of the person in question, for example, prohibiting a private person from doing public work as a whole or tightening regulations. More specifically, a private person’s right of expropriation, for the purpose of building a high-end golf club, is not recognized, it does not mean prohibiting or regulating any construction of golf club. Without expropriating land, a private person could by land he/she needs through deals with private land owners. The main purpose of eminent domain is so-called necessary evil measure which is only allowed for public interest prevailed under inevitable circumstances rather than ‘efficiency’ of expropriating land for public work. The concept and limits of expropriation by a private person should be defined within the scope of eminent domain because there is no difference in taking land by the government or by a private person when it comes to essential contents of expropriation such as subjects, procedures, expected effect and so on. In addition, expropriation by a private person is not different from it by the government considering the fact that expropriation is carried out against will of a private owner for the purpose of public need even though payment usually being made to the owners in compensation. Essentially, public or private expropriation is determined by the subject who takes land so that there should be no difference in contents and purpose of expropriation regardless of the subject. If the extent of public interest is exaggerated or fundamental purposes of allowing he/she to expropriate are undermined by private person who takes land, it amounts to illegal taking, as a result expropriation should be banned. A private person is invested with the right of eminent domain only when public need is recognized and then the public interest, which is intended to be realized by carrying out the work and expected to be kept. If a private developer, invested with right of expropriation and taking lands of others, only focuses on his/her own profit seeking and does not place much importance on public interest which was expected to be realized by the work or the government fails to prevent misusing the system of expropriation by the private person in advance, expropriation by a private person might become an unjust ways of the government to take something from the weak and give it to the rich. Eminent domain is a government power which entails compulsory taking, the government shall well place expropriation by a private person with systematic measures so that justification of exercising its power. Therefore, measures to realize public interest in expropriation by private persons might be a tool that it has the same effect of eminent domain by the government or authorities.

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