하천부지 미불용지에 대한 손실보상제도 연구

하천부지 미불용지의 손실보상 제도를 연구했다.

The lot for a compensation in arrears is the lot which was incorporated into public utilities conducted previously without being paid compensation, special case excluded form prior compensation. If such lot which was excluded from compensation after it had been incorporated into previous public utilities, and then have been incorporated into a new public works, the compensation is estimated by the standard applied to the use condition at the time it was incorporated into former public works.

But, in case the previous use condition is unknowable, the land category and the use condition of neighboring lot at the time it was incorporated into previous public utilities is referred for estimation. But currently, there is no objective standard for the judgment of use condition. As the administration documents of the lots in arrears for compensation were recorded a long time ago (previous public utilities), competent authorities are not capable of finding for proof, and finding them is even more difficult if administrative districts have been changed or separated. It's also difficult to decode the data of aerial measurement, which needs to be decoded by experts.

Accordingly, in case the use condition of the lot for a compensation in arrears at the time of its incorporation is unknowable, and the main contractor, the person responsible for its poof, won't be able to prove it, the compensation should be paid in accordance with the land category under article 25(1) in the Enforcement Regulations of Land Compensation Law.

Meanwhile, there are a great deal of speculator & brokers who technically purchase or auctioning at dirt-cheap price only the lots in arrears for compensation and ask the agencies managing the lots for public works or the main contractors for compensation the price of which they fixed to the use condition of the lots at the time of its incorporation Following are the summarized plans to solve such problems. First, the compensation regulation for riverbed in arrears for compensation should be prepared.

As the evaluation system for the lots which hasn't been compensated for its incorporation into public works under the Land Compensation Law being restricted, its selling price isn't formed or reduced at considerable sum against its original purpose which is the payment of resonable compensation for the land owners who actually suffer losses from the restriction of their right of properties , but in reality, there isn't clear regulation for resonable compensation except for the lots unpaid in its compensation, and so the system is used for evil purpose violating its original aim.

Besides, there is compensation regulation for ‘roads’ in「Land Compensation Law」, but not for riverbed, and so clear compensation regulation should be established. Second, the right to purchase provincial riverbed should be accepted to prevent the occurrence of the lots unpaid in its compensation.

The compensation for national riverbed or provincial 1class riverbed were paid by their owners' demand under 「special law」considering national financial stage, and for the lots incorporated into provincial riverbed were the same with national riverbed in restriction extend, and for roads, they were the subject to compensation at the time of the project enforcement irrespective of their types whether they are national roads, city roads, county roads, as long as they were designated as road areas, and for the lots which was unpaid its compensation have been purchase or paid for rental fee, which means it's unjustified if the right to purchase the lots designated as provincial class 2 riverbed wouldn't be accepted.

Third, main contractors are reliable for the proof of the lots haven't been paid for compensation. The administration document of the lots in arrears for compensation are often not kept in the administrative institutes due to a long pass of time, or difficulty to find them due to the separation of the institutes. Accordingly, general people won't be able to find the related documents and prove. Besides, as the aerial photograph needs to be decoded by the experts, the main contractors are rather responsible for the poof of the lots in arrears for compensation. Fourth, a balanced administrative criterion is necessary.

The criteria for land compensation should be applied the same at the time of that for compensation evaluation and that for imposition of transfer tax. That is, if official land price for sample land is applied for compensation, while actual transaction price is applied for imposition of transfer tax, popular complaint would arise against double standard.* It's often the cases that the lots in arrears for compensation are estimated based on riverbed and property tax is estimated based on paddy field. In this case, the land owners are doing their compulsory tax paying based on paddy field and riverbed is based when they are facing to get compensation.

Such double standard inflicts losses on the land owners which is infringement against article 11 in the equal right and article 23 in the regulation under right of properties. Accordingly. the equity of land compensation law and taxation system is necessary. Fifth, the application of the expected interest rate should be rationalized. In case of estimation of integrated rent by integration for the lots in arrears for compensation, the expected interest rate that will be applied needs to be estimated based on the rate, on which the traits of the district or lands are reflected, and in case if estimation is impossible, feasible rate is supposed to be applied which is fixed as regulation.

Though there are many problems in application of expected interest rate by directly connecting with interest rate from normal transaction in real estate due to the gap in profitability, stability, liquidity caused by the trait of real estate, it's advisable to apply the expected interest rate following the land use & use conditi 미불용지는 종전에 시행된 공익사업의 부지로써 보상금이 지급되지 않은 토지를 말