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Reconsideration of Compesation for Premium in Urban-Rehabilitation Project Based on Legislation for Premium

  • Public Land Law Review
  • Abbr : KPLLR
  • 2015, 72(), pp.259-282
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

NO HANJANG 1

1국민연금공단

Accredited

ABSTRACT

Premium for commercial buildings is a widely spread business practice that it has long been taken for granted in usual activated business area. The amount of premium for commercial buildings in Korea has been put at around 30 trillion won. Regardless of its practical substance and important function in the economy of ordinary people, give-and take of premium has been left exclusively from legal protection in the name of principle of private autonomy because there has been no positive laws regarding premium. Accordingly, premium for retail buildings has been treated case by case by commercial customs and judicial precedents until the amended Commercial Building Lease Protection Act(2015.5.13.) what is called Protection Act for Premium was executed. Legislation for premium through incorporating into the legal system has special meaning and historical significance in that It does consolidate the protection of lessees’ premium recovery. However, the purpose of amended Commercial Building Lease Protection Act was to further protect lessees’ premium withdrall just in the private judicial area that it contains various limitations in the area of public compensation for premium. Above all, current judicial legal system doesn’t accept the compensation for premium in the process of urban-rehabilitation project yet despite the legislation of premium for commercial buildings. The absence of positive law about compensation for premium in expropriation, use or restriction of private property from public necessity is also important limitation because Constitution of the Republic of Korea(Article 23) adopt the ‘Junktim-Klausel’ for guarantee of property rights. To remedy current unconstitutional situation above mentioned, this study suggests some legislative improvement approaches as follow: Firstly, it need to recognize based on new perspective that premium come under guarantee of property rights. Second, the compensation code for infringement of lessees’ commercial premium by expropriation, use or restriction of private property from public necessity should be specified on the positive law. Finally, the concrete criterion for premium appraisal need to be established to protect lessees’ reasonable compensation as a fundamental human rights.

Citation status

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