土地所有權 制限의 限界에 관한 私法的 硏究 = (A)study on the boundary of the limitation of land-ownership

토지소유권 제한의 사법적 한계와 바람직한 토지이용을 연구했다.

This study is to seek a desirable policy alternative for legal and social restrictions related t o the exercise of ownership system for a desirable land use. Land is the foundation of human life and national formation as an indispensable factor for the national survival and production activity. We live in the age of high industrialization, information and internationalization. The concepts and characteristics of land ownership system have been changed. Therefore, the concept of ownership in the age of modern industrial capitalism which was ruled by the principle of the absolute ownership and freedom of contract has resulted in a remarkable change of cognition of land ownership.

As the capitalism has been highly developed, the liberal ownership of the modern times began t o produce a discrepancy that the power ruled the weak legally with the principle of freedom of contract. A distinction between the poor and the rich becomes larger, which oppressed the urban laborers and the tenant farmers who are socially and economically weak and then antagonism between social classes has been worsened. To correct such an evil, necessity of limiting free ownership has been recognized and the revision of free ownership has been unavoidable.

It should be recognized that such an evil was resulted from the specialty of land itself(impossibi1ity of recycle, non-substitution, fixedness, succession, publicness and environmentality) and the constitutional laws of all countries give stronger sociality, publicness, regulations and limitation of land than other ownerships since the Weimar Constitution. Since land exists for the human survival and use. not for possession, view and legal system of land ownership should be established for this. It is considered that land ownership can be limited under fixed legal requirements since it is under strong social restriction.

But, essential content of ownership order in capitalism society should not be violated and land ownership is limited centering around right t o use it rather than possession and such a limitation can be made only by laws for the purpose of national security, keeping order and public welfare.

Subdivision of land ownership caused by land division and adjustment which is the traditional urban development method and reflection of the formation of scattered and non-planned urban space due to the development of retention of land ownership have been positively verified with the extension of public development method and standard land price should be decided fairly to avoid conflict and trouble about compensation of land between projectors and owners and unification of evaluation agencies and price valuation should be achieved. Limitation of land ownership must be devised with legal measures for the balance and harmony of possession and use.

On the one hand, redemption system of developmental profits which is reverted to land owner a s unearned income should be complemented and on the other hand, loss from development should be compensated and social country living together in harmony with public and private profits should be developed. On the violation of property right based on the law without the regulation of compensation, as developmental profit should be redeemed, the limitation of land ownership under the prescribed requirements for public profits is allowed, but for "special sacrifice" beyond the social restriction, compensation of developmental loss should be followed.

On the necessity of regulations of land property right, its active progress is the request of the times. On the land, ?priority of public welfare?, in other words. ?Publicness? of land policy should be emphasized by the reason of 「publicness」 of land. That is to say, one party asserts that 「Freedom」 of land ownership is the area of absolute inviolability guaranteed by the constitutional law and the other party argues that it is subordination of 'freedom of land ownership into 'public welfare, in the side of land use. When we evaluate the regulations of restriction of land property right , it should be considered enough that it will assume what content of 「Publicness」.

In conclusion, since land is the national public property like water or air, private ownership of land is recognized, but i t s essence should be publicly owned. Policy that can conduct reform and create public interest of urban land use and ownership system in a stable condition of land price legally and rationally should be revised and the selection of policy for national and social interests should be made. It is considered that this study is not perfect, but it is hoped that it is available for settling the whole problems of land ownership and use in capitalistic society.

목차 = ⅰ 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍와 方法 = 5 第3節 論文의 構成 = 6 第2章 土地所有權의 理論的 考察 = 10 第1節 土地所有權 = 10 1. 土地所有權의 槪念 = 10 2. 土地所有權의 經濟的 重要性 = 13 3. 土地所有權의 法的 特殊性 = 17 4. 韓國 土地所有權의 內容 = 20 第2節 制限 = 34 1. 制限의 意味와 分類 = 34 2. 制限의 契機 = 36 第3章 土地所有權의 制限 = 43 第1節 近代以前 土地所有權의 構成 = 43 1. 所有權의 根本思想 = 43 2. 發展過程 = 44 3. 小結 = 46 第2節 現代國家들의 土地所有權 制限 = 47 1. 獨逸 = 48 2. 프랑스 = 54 3. 英國 = 58 4. 美國 = 63 5. 日本 = 66 第3節 土地所有權 制限의 理念 = 71 1. 自由主義的 所有權論 = 71 2. 土地公槪念論 = 81 3. 私見 = 92 第4節 土地所有權 制限의 法的 原理 = 95 1. 憲法 = 95 2. 民法 = 103 3. 民法以外의 法律 = 108 第5節 土地所有權 制限의 具體的 內容 = 112 1. 土地所有權 取得의 制限 = 112 2. 土地利用(使用)에 制限 = 115 3. 土地로부터의 收益에 대한 制限 = 118 4. 土地의 處分에 대한 制限 = 119 5. 土地收用 = 120 6. 訴訟을 目的으로 하는 信託의 禁止 = 120 7. 其他 = 121 第4章 土地所有權 制限의 限界 = 122 第1節 槪觀 = 122 第2節 法律에 의한 制限의 原則 = 124 第3節 公共必要라는 目的上의 原則 = 124 第4節 過剩禁