재건축 개발이익환수제도에 관한 연구

재건축 개발이익 환수제도의 도입과 개선방안을 연구했다.

Recently, existing urban towns are in severely falling behind and deteriorating, due to social and economic changes such as low population growth, aging of people, changed industrial structure etc. This has become the social problem to be solved urgently in cities where population is in gradual decrease. To overcome this issue, a new paradigm called urban revival appeared in advanced countries. In Korea, various systems has been introduced such as 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents」and 「Urban Development Act」,「Special Act on the Promotion of Urban Renewal」etc.

to solve the deteriorating problem of existing urban cities, and to realize balanced development policy within city. However, real estate speculation appeared as the trade off to development. Reconstruction business is pointed out as the main cause of housing price hike and hence became big controversy It is now the big social issue to restitute the development gains as unearned revenue. Based on these critical mind, this paper selected restitution system of reconstruction development gains as subject of study and review. First of all, this paper reviews on property right and then the publicness as the basis of restitution of development gains.

And then this paper reviews on various types of restitution systems of development gains. Various legal and systemic measures thereof have been stipulated by each individual law, and have evolved with varying contents and intensity according to social environment. In 1980s, restitution system targeted land by limit on housing land ownership system, Excessively increased Valuable Land Tax Law, development impact fees etc.

In Real estate market policy announced on March 30, 2003, various restitution methods were included trying to restitute housing development gains such as mandatory small-housing ratio within Metropolitan overpopulated constraint district, limitation on transfer reconstruction association membership, enforcement of development gain restitution, mandatory supply of letting houses, counting of number of association members subscription when assessing capital gain tax etc. Policies taken after 2008 deregulated and rescinded existing regulations introduced by Participatory Government in the past, sometimes becoming little more than the names in weaker enforcement.

For example, mandatory small-housing ratio was relaxed but Seoul Metropolitan Government adopted ordinance mandatory 20% of small housing less than exclusive size 60㎡ in reconstruction. Mandatory letting ratio was discarded as well, but increased avaliable spaces shall be used for public letting or long term letting. and reconstruction excessive gains restitution system, though invoking many controversies such as unequal treatment with other housing enhancement project, has not been abolished yet.

Under those conditional deregulation, reconstruction system falls short of achieving the genuine purpose of improving urban environment and enhancing housing quality by improving old and inferior housing in areas requiring recovery of urban functions. This paper suggests legal improvements to restitution of reconstruction development gains. Firstly, this paper suggests that mandatory small-sized housing ratio shall be discarded. If this system is purported to supply increase, other policies such as increasing floor area ratio shall do the work. Housing size as well as choices should be diversified.

Seoul Metropolitan Government's ordinance of 20% mandatory ratio of 60㎡ at reconstruction should be discarded as well. For reconstruction of houses without less than 60㎡ size, this paper calls for discarding of mandatory small sized housing ratio, leaving choice of size to association members' free will. The resulting development gains should be taxed as capital gain (excluding members from capital gain tax exemption for each family owning one house). Secondly, this paper suggested abolishing prohibition on transfer of association membership status. Capital gain from association membership transfer may be restituted enough by capital gain tax.

Currently, association members rights are too severely infringed as transfer is prohibited even when house price fell due to economic and social circumstances changed. The purpose of this regulation used to be curbing speculative group aiming for short term gain. But as taxation may do the work, hence transfer of association membership should be allowed. Third is discarding of restitution of excessive gain from reconstruction. Reconstruction as business has already shrinked already. Increased floor area ratio of 25% was taken by public letting house and long term letting.

Development impact fee pursuant to excessive gain restitution added to the alleged infringement on association members' property right and right to pursue happiness. Already the business has been at standstill due to mandatory small-size housing, various charges, land donation to government etc. Deregulation of reconstruction business may not lead to housing price hike as before by speculative forces, as real estate market transparency has been enhanced thanks to adoption of real estate transaction reporting system, house transaction report system etc.

Member of reconstruction association are now accepting 1:1 swap of old house with new house, pursuing more environment-friendly housing rather than quick development gains. Restitution system on reconstruction development gains shall be accordingly amended in reasonable direction. The basic direction of rationalization shall be restitution faithful to protecting fundamental right of citizen stipulated in our Constitution. 최근 인구 저성장과 고령화, 산업구조의 변화 등 다양한 사회 · 경제적 여건 변화가 진행됨에 따라 기존 시가지의 낙후 및 쇠퇴현상이 심해지고 있으며, 이는 인구가 점차적으로 줄어들고 있는 도시의 경우 시급히 해결해야 될 사회적 문제로 대두되고 있다.

이를 해소하기 위해 선진국에서는 도시재생이라는 새로운 패러다임이 등장하였고 국내에서도 기성 시가지의 쇠퇴 문제를 해소하고 도시 내 균형발전정책을 실현하기 위하여 「도시 및 주거환경정비법」및 「도시개발법」,「도시재정비 촉진을 위한 특별법」등의 여러 제도가 운영되어 왔으나, 개발에 대한 반대급부로