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A Study on French Legal System on Expropriation, Reformed in 2014

  • Public Land Law Review
  • Abbr : KPLLR
  • 2016, 73(2), pp.27-42
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Hae Cheol Byun 1

1한국외국어대학교

Accredited

ABSTRACT

Expropriation is a governmental act, taking private property. Even the right of property is considered as one of human natural rights, it is also allowed, directly or indirectly, to be limited by each country’s constitution or regional convention, for example, European Convention on Human Rights. In the United States, the expropriation is allowed indirectly by the Fifth Amendment to the Constitution, which states, in part, that "private property [shall not] be taken for public use, without just compensation." According to French declaration of human and civic rights of 26 August 1789, Property is one of the natural and imprescriptible rights of Man, which is the aim of every political association.(Art.2) And, no one may be deprived of the right to Property which is inviolable and sacred, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid.(Art.17) It is also adopted by Napoleon Code, which states that “No one may be compelled to yield his ownership, unless for public purposes and for a fair and previous indemnity.”(Article 545 of Civil Code) The Code of expropriation of 1977 was replaced by a new Code which, not only, gathered all legislations and regulations which were adopted for the purpose of modifying and completing the old one. But, it renewed the system of expropriation. The questions had been raised from the dual procedure of expropriation(administrative step and judicial step, for the questions of which were respectively attributed to the administrative court or the judicial court) and some requests by European integration. For settling those questions, the reform was focused on clarification of the rules on the public inquiry, introduction of appeal to the juridiction judicial of common law, perfection of procedure of examination on the absence of legal base, etc. The reform of 2014 is actually evaluated as successful. However, it will be confirmed in practice in the future.

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