택지개발사업과 환매권의 헌법문제

택지개발사업에서 공익사업을 위한 토지수용과 환매권의 헌법적 쟁점을 검토했다.

According to the Constitution Art. 23, the right of property of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Acts. But, exceptionally the Constitution Clause 3, Art. 23 allows to deprive of property contrary to owner's will if only essential conditions is satisfied. The Act on Acquisition and Compensation for Land, etc. for Public Projects is a law which regulates expropriations, use or restriction of private property (especially real estate) from public necessity and compensation. Besides, the Act regulates in detail the committee of land expropriation, the formal objection and the right of repurchase, it is got into shape of completion.

The right of repurchase means that the former owner would apply to return the land, paying the regular price to the project developer if only the land is no more necessary by reason of abolition or alteration for public projects. It should be enacted by legislators in accordance with the request of the guarantee of property right in the Constitution. If this principle isn't observed, the right of repurchase system comes to a conclusion of unconstitutionality. The Residential Site Development Promotion Act makes a application of the shorter time limit of request than the Act on Acquisition and Compensation for Land, etc. for Public Projects.

However, the right of repurchase in the Residential Site Development Promotion Act is ill founded in that it is based on insufficient public necessity. Furthermore, there is something uncertain in making use of it. Considering this problem, the right of repurchase which is expired in a year seems to be wholly contrary to the principle of the guarantee of property right in the Constitution. If the right of repurchase which is expired in a year in the Residential Site Development Promotion Act is made adecision of the unconstitutionality, the right of repurchase in the Act on Acquisition and Compensation for Land, etc.

for Public Projects is applied to exercise right of repurchase or has to watch for legislation by the National Assembly. Finally, it is the matter that could be selected by the construction of law.