開發制限區域의 補償法理에 대한 硏究

개발제한구역의 토지이용 제한에 따른 보상 법리를 연구했다.

Land is originally limited in supply because it is impossible to produce or substitute. Also, all Korean people depend on the rational use of land as the base of their production and living, while the area of usable land is absolutely insufficient. Therefore, land cannot be regarded like other property rights and the public good should be observed more strongly in its social function and national economic perspective. However, even though limiting landownership is possible for public good, the limitation should be also limited in that the constitution consider the right of private property a principle.

Therefore, not only principle of proportionality should be observed like other basic human rights, but also use and a beneficiary right, which is the principle contents of the property rights, should not be denied.(The constitution Article 37, Phrase 2). Also, for regulations, which newly determine contents and limits of property rights, to be constitutional, it should take account of trust protection for concrete rights occurred in the past regal status. Under the existing law of Korea, we rarely remunerate as for the limitation for public use which does not reach to deprivation of property rights.

Especially, in designating limited development district, which is the one type of limitation for public use according to (old) City Planning Law, argument on remuneration has important meaning, because there existed no regulations of remuneration even though infringement on property rights had been severe. However, the constitutional court reached the decision that (old) City Planning Law, Article 21, is not constitutional.

Later, the ministry of construction and transportation made a big change announcing system improvement proposal on limited development district, and establishing special law for the assignment and management of limited development district, which ensures partial remuneration regulations for the first time after limited development district became effective. Therefore, we should approach to the subject from new perspective.

That is, it is the time new discussions are needed about which meaning the decision of the constitutional court has to our laws on limitation of property rights by considering how the constitutional court sees the limitation on property rights based on laws under the constitution, which do not have remunerative regulations, . As everybody knows, the system of limited development district have always raised the argument that it limits property rights of the landowners by inducing relative decrease in the price of the land or in increase rate of the price of the land, in that limiting constructions which do not fit for the purpose of that limited development district.

However, (old) The City Planning Law did not set any other remunerative policy, and many argument about if the law is applicable to "Special Sacrifice", that it violates Article 23, Paragraph 3, and if the landowner can request remuneration in such cases. This research examined the 'Boundary Theory' as the preliminary discussion of legal principles of remuneration. This theory was systemized by German doctrine and precedents, and scholars of constitution and the administrative law in Korea often took the position for this theory.

According to "Boundary Theory", social constraint and infringement on public use is not the separate systems but the same property right infringement which can be distinguished by "the degree of limitation on property rights'. That is, both social constraints(contents regulations) and infringement on public use mean limitation on property rights, but the former should be persevered without remuneration while the latter means infringement on property rights, which should be remunerated because that goes out of the boundary of social constraint.

Unlike Boundary Theory, "Separation Theory', which distinguishes contents reputations from infringement on public use according to the mode and purpose of legislation, was established by precedents of German federal constitutional court. "Separation theory", was developed from the perspective that even when contents regulation of property rights brings up excessive infringement, 'contents regulation' can not be converted to 'reception', and such contents regulation is not constitutional if there is no remunerative regulation when it brings receptive effect.

That is, contents regulation which violates the principle of proportionality, equality, trust protection can not be converted to reception, but such violation of the constitution can be removed through remunerative regulation. Under such condition, content regulation becomes 'content regulation which requires remuneration'. Understanding of property rights hitherto has its base on the concept of 'Value Assurance' accepting infringement, which is also the violation of constitution on property rights, and requesting remuneration afterward.

However, when considering close internal relationship between guarantee of property rights and basic human freedom, the existence of the property rights guarantee should be assured rather than limited to guarantee remuneration of the loss of property right value.

Also, "Separation Theory" establishes new relationship among the constitutional court, legislator, and the court by attributing final unconstitutional judgement on laws to the constitutional court, option between 'contents regulation on property rights' and 'reception' to the legislator who have the right for budget when limiting property rights, and the right for judgement on whether remuneration is appropriate to the court when legislator made the remunerative regulation by choosing reception.

Also, for the new regulation, which decides contents and limits, to be constitutional, not only the law, should not violate the principle of proportionality and the right of equality, but also the legislator should consider the trust interests of people who have already acquired property right