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The Review on the Gap between Public Property Law and Practice and Legislative Tasks - Focusing on Public Waters like rivers -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2020, 92(), pp.131-152
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : November 2, 2020
  • Accepted : November 23, 2020
  • Published : November 25, 2020

SUNG BONGGEUN 1

1서경대학교

Accredited

ABSTRACT

Due to recent climate change, natural disasters related to river flooding or extinction are frequently occurring. Even in the case of public waters, various questions about the effectiveness of the norm and the gap between law and practice are asked whether there are any significant problems with the existing legal theory and legal system. Public Property is specially regulated by public law through public designation for public purposes. Legislation should be in place so that the administration can effectively and successfully achieve public objectives for various tributaries such as roads, rivers, ports, airports, parks, and cultural properties. However, the gap and separation between law and reality is severe in administrative law with various individual fields. Legislation on Public Property should also continue to investigate and discover the gap between law and reality, and make legislative efforts to reduce the gap. The Ensuring State is obligated to guarantee the use and benefits of Public Properties through legislation for the welfare and survival of the people. When we fulfill the legislative obligations to reduce these gaps and catch up with the reality, we can in the course of the administration easily find the standard to solve the problem and implement it. And we can also easily accomplish the justification of the court's ruling. In order to find and reduce the gap between these laws and reality in various individual fields related with public property, above all in this article I have focused on and discussed the scope of public waters. Especially Article 2, Section 1 of the 「Act on the Management and Reclamation of Public Waters」 shall be revised to fundamentally correct the phenomenon of misinterpretation and application of laws due to inconsistencies between reality and norms. It should be possible to match the norms with the reality without discrimination. Whether the kind of Public Property is state-owned, shared or privately owned, systematic management for public welfare of water should be made successfully and effectively. Including the land adjacent to the water surface or current can provide a legal basis for solving the problem through legislation. Considering the characteristics of water, the legislation can consider a concept of shared water and thus is able to manage for rational use and useful use of water. In addition to water and water currents, it is necessary to establish a system of legislative work (laws, legal statute, and administrative rules) to include adjacent lands in the concept of shared water and to establish standards. In addition, it is necessary to amend ‘PUBLIC WATERS MANAGEMENT AND RECLAMATION ACT’ so that complex laws can be applied very well reducing and overcomin the gap between law and practice.

Citation status

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