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Urban planning and planning rights of local governments from the perspective of the Anglo-American legal system and comparative law

  • Public Land Law Review
  • Abbr : KPLLR
  • 2021, 95(), pp.95-124
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : July 31, 2021
  • Accepted : August 23, 2021
  • Published : August 25, 2021

Kim, Sung-Bae 1

1국민대학교

Accredited

ABSTRACT

The concept of urban planning can appear in various ways depending on the the social background of each country and the development stage or system of the city. No matter how urban planning is defined, urban planning ultimately exhibits the characteristics of restricting the use of land, the private property guaranteed by the Constitution. In legal perspective, urban planning is one of administrative planning, so it inevitably has the commonalities and limitations of general administrative planning. Urban planning is not a legal concept in the strict sense under the current law, but the term urban planning is generally used to mean the urban planning in the National Land Planning Act. However, in Article 5 of the National Land Planning Act, only “city plans”, which are spatial plans established by “city” (including Jeju-do) and local governments, “city” are called “urban plans”. This designation is difficult to agree with as it can share the basis of the misunderstanding that connects “city planning” to the beginning of the first modern urban planning. The first Western-style urban planning in Korea should find its origin in the Hanseong-bu urban remodeling project as part of the Gwangmu Reform in the late 1890s during the Korean Empire. Under the current law, urban planning is not a legal term in the strict sense, so it is necessary to understand urban planning in the broad sense of planning for spaces, etc. . Urban planning in the United States and Europe has had more of an impact than any other country has in the United States or Europe. In the United States, the powers of local governments are not limited only by state constitutions, state laws, or self-governing charters, but their limits are set in connection with the guarantee of rights under the federal constitution. The legal basis for the establishment of zoning exercised by local governments in the United States depends on the broad police power of the state and local governments. In the United States, state laws and state constitutions recognize and justify the planning authority of local governments based on the state's police power, but in general, state planning legislation is the minimum standard that local governments have when making plans. It sets the standards of Unlike Korea, urban planning in the United States started first in the private sector, and the basic local government adopted specific urban planning based on the police power and prepared related ordinances. bind the group. In the United States, urban planning is a plan at the level of local governments, but local governments in the United States are created within the control framework of state laws, and the planning authority exercised by the state or local governments is also limited to individuals guaranteed by state and federal constitutions. fundamental rights cannot be violated. The regional zoning system, which is the most commonly used land use regulation in the United States, is understood as an exercise of police authority, and urban planning is also understood as an exercise of police authority, and unlike land expropriation, it is understood that it proceeds without compensation. The provincial planning laws mainly list the types of mandatory plans that local governments must establish and factors to consider.

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