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Plans to Balance between Owner-centrism and User-centrism in regard of Land

  • Public Land Law Review
  • Abbr : KPLLR
  • 2016, 73(2), pp.43-63
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Jeong Kuk Won 1

1대구대학교

Accredited

ABSTRACT

Article 23, Section 1 of the Korean Constitution specifies “Property rights are guaranteed.” It stipulates 2 kinds of normative contents, first, property rights and second, guarantee. Each fundamental right in the Constitution takes the form to provide ‘guarantee’ in principle. However, guarantee for property rights is stipulated not only for guarantee in terms of the form, but also for ‘limitation’ of property rights in addition to the same Article. That is to say, it takes a structure of 4 phases by adding 3 Sections of limitation to 1 Section of guarantee as the front part of Article 23, Section 1 of the Constitution is stipulated for “guarantee for property rights”, the latter part of Section 1 for “its content and limitation”, Section 2 for “social restriction of property rights”, and Section 3 for “expropriation, use or limitation due to public necessity.” As for the classification of property rights, they are divided as general property right, intellectual property right, and land property right. In particular, land property right is involved in many cases of confrontation between private interests of individual property right holder and public interests of social community. Stipulation of constitutional guarantee for property rights is the normative ground to solve this conflicting problems. As supply of land can not be expanded according to the increase of demand, the principle of market economy principle can not be applied as it is. As land has characteristics of fixedness · adjacency · primary productivity · environment · contiguity · sociality · publicness · territoriality, the intrinsic content of guarantee for property rights, owner-centrism, can not be given the only priority to and user-centrism for the interests of community should be considered as well. In terms of land in today’s highly developed industrial countries, the increase of strong public demand requires the stronger public restriction on land property right than any other property rights. Though the demand of publicness for land as property rights guaranteed in the Constitution recognizes private ownership and owner-centrism that priority should be given to private interests of owners as much as private ownership, it appears as social confrontation and conflicts by contradictive demand from user-centrism that the use of land should be restricted in accordance to welfare of the public. Owner-centrism perspective points that land should be also ruled by the principle of private autonomy like other goods and that the restriction of land property right includes the limitation of disposition right, which means the violation of personal rights to cause the crisis of private property system. In contrast, user-centrism perspective points that if private property right of land is overestimated and land is traded and monopolized in distorted prices by some groups of speculators in real estate market, it is impossible to secure the land required for social uses and general welfare for community is threatened. This study developed a discussion about a plan to balance between owner-centrism and user-centrism in accordance with the constitutional ground and contents. First, the constitutional ground and contents of owner-centrism and user-centrism was examined. Second, as for plans to balance, this study suggested plans, such as the balance of interests, the principle of proportionality, the restriction of violation of fundamental contents, and the preparation of substantial indemnification.

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