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A Study on the Compensation for Administrative Losses of Small Business Restrictions

  • Public Land Law Review
  • Abbr : KPLLR
  • 2021, 94(), pp.189-207
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : April 30, 2021
  • Accepted : May 21, 2021
  • Published : May 25, 2021

Park Sehun 1

1한국법제연구원

Accredited

ABSTRACT

Although the nation's quarantine cooperation against the outbreak of infectious diseases without treatments and vaccines has been successful, small business owners are threatened with their right to live as Corona-19 has been unable to cover fixed expenses such as labor and rent. The government is providing disaster support to the nation and small business Enterprises in the form of subsidies, but the small business industry is arguing that subsidies are not enough and that losses should be compensated by business restrictions. The compensation for administrative losses is requested more strongly as the nation's need for various administrative actions increases in today's rapidly changing society. In other words, the form of property rights is diversifying and vast as society develops, and property rights can be set by legislators and limitations, and as the state performs market-controlled and public policy functions, the possibility of property rights being restricted or infringed is increasing. The exercise of illegal public power can be remedied by a claim for damages. However, violations caused by the exercise of such legitimate public power can be argued with constitutional petitions, unconstitutional legal trials, etc., but it is practically difficult to be rescued without legal grounds. Even if the exercise of public power is legitimate, the foundation of a democratic country will be shaken if it is tolerated without considering the loss of death. Therefore, it is in line with the principle of guaranteeing property rights and the administration of the rule of law to institutionalize the violation of the cause of death due to the exercise of legitimate public power to exceed socially acceptable level (special sacrifice). In principle, compensation for losses is recognized only if there is a provisions of the Act. According to the current Act on the Prevention and Management of Infectious Diseases (hereinafter referred to as the Infection Prevention Method), it is difficult to immediately recognize the compensation for losses due to the lack of business restrictions. In light of the general theory of loss compensation, it is a key issue whether the business restrictions in the infectious disease prevention method violate property rights to small business owners and become a special sacrifice beyond social restrictions. It is clear that it is the exercise of legitimate public power by public necessity, and that such exercise of public power infringes on the property rights of goodwill, and that it is natural to discuss compensation by excessively and intensively restricting certain operations. However, it is also true that it is difficult to clearly determine the business restrictions on the basis of unclear special sacrifices because there is no loss compensation regulation. It is expected to be meaningful in that it presents arguments that can determine whether it is a special sacrifice.

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