土地所有權의 制限政策과 改善方案에 대한 硏究

토지소유권 제한 정책의 개선 방안을 연구했다.

Land is the basis for human living and foundation for the nation. men cannot exist off the land, and a nation cannot exist without land. Historically, nation's political, social and economic order differed depending on the land code or system. In this sense, land ownership may well be a historical and legal expression of a nation's land system for a certain period of time. The new land ownership formed through the modern civil revolutions provided for a material basis for capitalism, and the principle of absolute ownership was combined with liberty of contract and negligence responsibility to enhance human rights and promote the capitalism economy dramatically.

However, as the capitalism became too rigid, free ownership and liberty of contract were deemed contradictory principles whereby the strong ruled the weak legally. Namely, the recognition and guarantee of free ownership could be translated into freedom of other's labor and threat to other life. In order to solve such problems, it was necessary to restrict the free ownership and thus, it was inevitable to modify the free ownership. Since the Weimar Constitution specified "public welfare" in 1919, the Constitution of almost every nation followed suit of the Weimar. Our Constitution is not an exception.

Since our first Constitution in 1948, our amended Constitutions have specified that "property rights should contribute to the public welfare", while specifying other various provisions restricting free ownership. In order to implement the above Constitutional provisions, there have been various codes restricting the property rights or ownership. The various land-related codes promulgated since 1970's to reflect the industrialization and urbanization are based on the public or social nature of land. Such codes controlling the land ownership were converged onto the three big codes based on the public nature of land in 1989.

Particularly in Korea with narrow land and high population density, the national wealth has bee biased due to the chronic inflation, industrialization, urbanization and speculation in land. As a result, the social discord has deepened, complicating the land ownership problem. Although the government has enacted numerous land-related codes, they have been little effective in solving the biased land ownership problem. Land is a basis of life and our environment. The limited resources or the land should not be misused as objects of speculation or individuals' private ownership cannot be infringed upon to be developed recklessly.

Establishment of a correct land system should start from the fair concept of land ownership, which is rooted on the land ownership system. With such basic conceptions in mind, this study was aimed at reviewing the systems restricting the land ownership, addressing the problems and suggesting their reasonable solutions and ultimately, establishing a new concept of land befitting the new millenium. To this end, in the second chapter, the history and nature of the land ownership are reviewed, and thereupon, the implications, needs and limits of the restricted land ownership are discussed.

In the third chapter, the types and conditions of our land ownership policies are examined to analyze the problems of the system and reality, and in the fourth chapter, reasonable solutions have been suggested as follows; People's view of land will differ depending on the land system established by the nation. We need to be aware correctly of the public properties or land. In other words, we need to highlight the public and social nature of land. Land should be owned by actual users, and used to its appropriate goals.

The resultant profits should be returned to the society to be distributed in a fair way. To this end, the long-established concept of land ownership should be changed into a new concept of ownership suitable to a new paradigm of property rights. In other words, the absolute land ownership should give way to the separation of development rights from the ownership in order to reinstate the public nature of the land. Such a mentality may be equated with the shift from the conventional land ownership to a new development right or disintegration of the land ownership.

Since the disintegration of land ownership must be a new challenge to our conventional land ownership, it will accompany many resistances and trials and errors. In order to introduce a new land property rights separating the land use rights from the land ownership, a national consensus needs to be formed through sufficient discussions among experts, and thereby, efforts be made to find a realistic alternative. For the new system of separating the land use from land ownership may be a co-existence strategy whereby we can live together on this narrow land.