Constitutional Issue in the Land Expropriation legal Procedures (토지수용절차에서 헌법적 쟁점 - 헌재 2009. 9. 24. 2007헌바114 결정을 평가하며 - )

Lee, Boo Ha (이부하)

Constitutional Issue in the Land Expropriation legal Procedures

Public Land Law Review
Abbr : KPLLR
2016, 73(1), pp.91-108
Publisher : Korean Public Land Law Association
Research Area : Social Science > Law

Lee, Boo Ha ¹

¹영남대학교

Accredited

ABSTRACT

Korean Constitutional Court has determined in 2007 hunba 114 in relation to Article 22 Clause 1 of Industrial Sites and Development Act, whether private enterprises can be to accommodate the subject of land expropriation, whether the land expropriation provision violates the ‘public necessity’ of Article 23 paragraph 3 KC, whether the land expropriation provision violates the Article 37 paragraph 2 KC (excess prohibition principle), whether the concept of ‘incidental project’ is contrary to the constitutional principle of clarity. The purpose of the Act is to promote the balanced development of national land and sustained industrial progress through the efficient supply of industrial locations and appropriate placement of industry, thereby contributing to the sound development of the national economy. In relation to land expropriation, first, land expropriation legal procedures have based on the Act. Whether private enterprises can be to accommodate the subject of land expropriation is open in the Constitution. Second, there is a real need. If project operator limits the national and local governments, the concession of public services to the national and local governments are likely to be difficult business or to be inefficient work by the constraints on the budget. Therefore, the provision which prescribes the private company the subject of acceptance does not violate the Article 23 paragraph 3 KC. The concept of ‘public necessity’ of the Article 23 paragraph 3 KC is a view that equates the proportionality principle, a view that consists of two elements of ‘publicness’ and ‘necessity’ of business, a view that is an inevitable ‘heightened public interest’ with regard to certain public services. In my opinion, ‘public necessity’ is for the realization of certain public utilities, public interest or national security. It should be broadly interpreted as a violation of public property in order to achieve public interest. That can be interpreted as a ‘public necessity’.

KEYWORDS

public necessity, land condemnation, existence guarantee, compulsory expropriation, private taking

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