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The Right to Land Property-related Provisions in World Constitutionsand Review of the Implication for Constitutional Revision in Korea

  • Public Land Law Review
  • Abbr : KPLLR
  • 2017, 79(), pp.197-220
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Jeong Kuk Won 1

1대구대학교

Accredited

ABSTRACT

In the Constitution of The Republic of Korea, there is no term for “right to land property”, but it is assured through guarantee of property rights as a basic rights on Article 23. From normative perspective, it consists of levels such as the guarantee of property rights of preamble in Article 1, contents and restriction of latter sentence of Article 1 is settled as law, imposition of duty of public welfare suitability of exerting property rights of Article 2 and approving public violation for public needs. When seeing the normative format of guarantee of property rights, there are more restriction than guarantee, which is to actualize the public benefit through restricting the right to land property. This study has organized and analyzed the guarantee of property rights of global constitutions and examined the current level of guarantee of property rights to land property in Korea. The right to land property is a part of basic right which should be guaranteed in high standard as long as it is guaranteed as property rights. The guarantee format of right to land property in global constitution are first, the case which it is guaranteed as property rights, second, the case which the social restriction of the guarantee of property rights an right to land property are both fixed, third, the case which the use or plan of land is fixed. As seen in the property rights provisions in world constitutions, Article 23 of Korean Constitution strictly regulates the characteristic of property right restriction like the German fundamental law. In future constitutions revision, there is a need to reorganize the format of regulation. In the future constitutional restriction, the problem related to right to land property is first, the problem about regulating the land along with property right, second, the problem about abolishing the duty of public welfare suitability regarding exercising property right, and third, the problem about specifying the territory as land in using and planning the territory. Article 23, Item 1 of Constitution says “ All the people’s property rights is guaranteed.” which does not require revision, but there is a need to consider revision of Article 23 Item 2 which says “exercise of property rights must suit public welfare”. The latter part of Article 23 Item 1 restricts saying “the details and restrictions are fixed by law”. Again in item 2, such social restriction is fixed and exercises two restriction excluding expropriation in the restricted format of guarantee of property rights. Therefore, there is a need to clarify the definition and details of norms by deleting the latter part of Item 1 or revising the restriction of Item 2. Also, as for the expropriation item of Article 23 Item 3, there is a need to specify the acceptance of property right to land acceptance by separating the land, or revise the compensation as full compensation rather than the proper compensation.

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