公益事業의 施行에 따른 正當補償 具現에 관한 硏究 : 횡성댐과 용담댐 건설사업의 집단분쟁 양상과 보상사례를 기초로

댐 건설사업의 집단분쟁과 보상사례를 바탕으로 정당보상 실현 방안을 연구했다.

In modern constitutional states, a property right is believed to be one of the classical and traditional basic inalienable rights. However with the progress of social states, a property right has been interpreted as a relative right which emphasizes public interests and accompanies internal obligations. Social l imitations on property rights are manifested in Article 23 of the constitution. Section 1 of Article 23 states that a right to property is reserved within the constitution. This in effect, confirms that it belongs as a constitutional human right. Section 2 contends that the use of individual property rights should be appropriate for the maintenance of public welfare.

Which thus represents social limitations on property rights. Section 3 declares that expropriation, public use or limited use of individual property can be executed for public interests. Futhermore, it specifies that any infringement on individual property rights should be accompanied by justifiable compensation. Based on the above Article, Article 23, 'Compensation in Public Administration' means the safeguarding action taken by the administration to moderate the sacrifices made by an individual in terms of property. This is referred to an individuals property rights, a rule of fair burden and impartiality and the premise of living rights.

In this case justifiable compensation should be interpreted as a complete compensation. Distinctive to the expropriation of urban areas is the operation of public utilities in a grand scale, such as building dams. This not only infringes individual property rights but brings rapid and serious changes on the economic and social demographies of the local community. This can have a great effect on the basic living conditions of the community. This can be especially seen in the case of dam construction. During this process, enormous quantities of land mass are submerged and impacted communities forfeit their basic standard of living.

Due to the peculiarities of some rural communities such as lack of education, old age, and reliance on the agricultural industry, the members of these communities can not maintain a certain basic standard of living which was attainable prior to the expropriation. Furthermore, these displaced citizens are unable to recreate the subsistence living of the community surrounding them. Thus becoming a worthless commodity in high unemployment rural regions. The government in turn incurres the enmity of the people. Therefore, this research contains the following contents.

Firstly, research on guaranteed property rights under the constitution, its limitation, the criterion of the compensation and details of the compensation was done by studying the traditional theory and institution of compensation under property rights. Secondly, analysis of the collective dispute and the actual condition of compensation in the cases of construction Hweng-Sung multi purpose dam and Yong-Dam multi purpose dam was done to gauge the limitation of usual compensation under property rights.

Third, even though the compensation for individual lifestyle is considered as an extended device of compensation to materialize justifiable compensation by scholars, the theoratical structure of it is no yet well built. Therefore, including not only usual compensation in terms of property but lifestyle maintenance, compensation for indirect occurances, the issue of relocation, the value of prior standard of living and the costs of relocation into the structure of compensation was attempted. It was done by reinterpreting the idea of justifiable compensation under Article 23 of the constitution.

Also, a study on mental loss which is viewed negatively by many people, was done as the issue of recognizing mental loss as a valid claim for compensation is brought forward more frequently. This was done to emphasize the need to recognize it as a valid claim for compensation. Therefore, the purpose of this research is to accomplish the justifiable compensation as well as amicable operation of public utilities by reinterpreting the property rights and compensation under the constitution.