開發制限區域의 損失補償에 관한 硏究 = A Study on Compensation for Loss in Green Belt

개발제한구역 지정에 따른 토지이용 제한과 손실보상을 연구했다.

The intrinsic target to designate green belt lies in protecting urban areas from the urban sprawl and supplying the urbanites with a sound recreational space. Accordingly, the validity of its designation is considerable unless an epoch- making mechanism to control urban sprawl rationally in the fields of urban planning or architectural engineering. So the recognition to green belt of people seems very positive in such a context. Even if such a highly positive recognition puts on green belt, the system contains many problems in itself including such as illogical border lines, inefficient land use, the land owners' economic damages and the inhabitants' daily inconveniences.

Especially the economic damages on the land within the area is the most serious out of these problems. This is caused from the rigid restriction to green belt, and in other words this land exists in a state in which its developmental potentiality is deprived completely. So it goes without saying that its land price is absolutely low. Such a distort in this system should be corrected. As everyone knows, the people's property right is protected in a level of constitution. In this context, the damages can be said to be said to the land beyond the constitutional law.

So the fact that green belt should be preserved stably and the owners' damages from its preservation should be removed constructs a dilemma. Only one solution to solve this dilemma is to offer compensation for loss in green belt. In addition, the theoretical validity of loss compensation for green belt follows the below. First, the fact that the land price of this area is lower than one-tenth of non-green belt means a specific sacrifice that exceeds the limit of social restriction implied intrinsically in property right. Second, there is an article of loss compensation on public infringement in a constitutional law. Third, the need of control between windfalls and wipeouts is required.

The appropriate measures of loss compensation for green belt could be taken like the following, which includes buying the land in a governmental level, introducing the system of transferable development rights(TDR) and offering various compensations for living. And the limitations of compensation are shortage of national finance, an ambiguity of selection effect from the changeability of public administration. As a result of the discussion, the management such as a partial release of administrative regulations to green belt is not a fundamental way to solve the problems with its designation.

On the contrary, the change of view point to green belt should be changed toward such an idea that 'green' should be focused in green belt policy rather than development restriction in urban in the process of urban planning.

目次 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 方法 및 範圍 = 4 第2章 土地所有權의 制限과 損失補償 = 6 第1節 土地所有權의 制限 = 6 1. 土地所有權의 本質 = 6 2. 土地所有權制限의 意義 및 範圍 = 9 3. 土地所有權制限의 形態 = 12 第2節 土地所有權制限에 따른 損失補償 = 15 1. 損失補償의 意義 및 根據 = 15 2. 損失補償의 內容 = 19 第3節 開發制限區域指定을 통한 土地所有權의 制限 = 22 1. 開發制限區域의 指定目的 및 期待效果 = 22 2. 開發制限區域에 대한 損失補償의 當爲性 = 27 第3章 開發制限區域의 現況 및 問題點 = 39 第1節 開發制限區域의 現況 = 39 1. 開發制限區域의 指定現況 = 39 2. 開發制限區域指定에 따른 行爲制限 = 41 第2節 開發制限區域의 問題點 = 51 1. 法理論的 側面 = 51 2. 物理的 側面 = 55 3. 經濟的 側面 = 57 第4章 開發制限區域에 대한 損失補償方案 = 60 第1節 開發制限區域內 土地의 公有化 = 60 1. 開發制限區域內 土地公有化의 必要性 = 60 2. 開發制限區域內 土地公有化方案 = 63 3. 재워조달 방안 = 64 第2節 開發權讓渡制의 導入 = 65 1. 開發權讓渡制의 意義 및 法的根據 = 65 2. 開發權讓渡制의 施行節次 및 內容 = 66 第3節 생활補償 = 69 1. 開發制限區域에 대한 生活補償의 內容 = 69 2. 施行上의 問題點 = 71 第5章 結論 = 72 ABSTRACT = 78 參考文獻 = 81