용익물권에 따른 도시개발사업 편입토지의 차등보상방안 = Differential compensation plans of real property taken by urban development methods depending on usufructuary right

도시개발사업 편입토지의 용익물권별 차등보상 방안을 제안한다.

The purpose of this thesis is to construct improved compensation models for commercial building lessees to be rewarded from their owners according to the rate of the remaining term of a contract by rejecting uniform compensation and fragmentarily extended compensation without considering the existence of lessees in commercial buildings expropriated into the urban redevelopment methods, and by standardizing compensation systems taking restrictive ownership rights.

First, as important issues related to property rights, business compensation paid instead of a premium in the compensation of lessees in commercial buildings expropriated into urban redevelopment methods has been at issue whether such a business compensation is a balanced compensation for a just compensation in the constitution. A premium has not been guaranteed in the present laws, but has been traditionally given in a rental contract of commercial buildings. Lessees have not been given balanced lose compensation including the premium in the part of business lose compensation between owners and lessees, and they have been always exposed to such conflicts and antagonistic relations.

Second, as a result of analyzing the value of usufructuary right to grope the solutions to the problems with this current compensation system and compensation conflicts, the problem is that owners are given the same compensation regardless of the existence of lessees. To solve this problem, according to the existence of lessees and their remaining term of a lease, it might said that owners' differential compensation was given. Therefore, I suggest that owners' income of commercial buildings should be differently rewarded according to the existence of lessees. If there is no tenant in the building, owners' income will be determined according to the cost of owners' compensation.

If we present a monthly income of a lease from a commercial building as R, total income from owners' compensation and income of a lease as , the remaining term of a lease as t, the result is that . If the standard of compensation for lessees' usufructuary right is lower than the cost of a lease, the result is . It means that owners' income with lessees is higher than owners' income without any lessee. Compensation to limited ownership rights like leasehold rights will be determined in the same standard of lease income or in the higher standard.

Third, the model analysis to be an empirical analysis for improved compensation models should be necessarily made by groping lessees' contract term and remaining term in case of owners with any lessee within the target area of the redevelopment methods, but there was a limit impossible to collect materials about contract terms realistically. Instead, based on one month of 3 month-business income compensation given to lessees, changes of total compensation relations between owners and lessees were shown through the model analysis of 6 improved compensation models. Fourth, Item 7 of Art.

10, clause 1 from 'A law for protection of commercial building tenants,' is a disadvantage over petty merchants, in case that commercial lessees do not have the right for renewal of a contract as a result of urban redevelopment methods, which disturbs lessees' indirect compensation, but this item 7 is unilaterally advantageous to owners. Therefore, this item should be deleted. In the real world which doesn't protect lessees' right for a premium payment during their lease in connection with lessees' premium in commercial buildings, it has been at important issue in investigating balanced compensation to be indirectly valuable enough as a premium.

The compensation model suggested in this thesis is that lessees should be given a certain amount of compensation cost which owners receive according to the remaining term, and owners should progress urban redevelopment methods as a form of indirect compensation through incentive within rewarded limits of lessees. Accordingly, this method helps minimize compensation conflicts without increasing the cost of development, and is expected to contribute to progressing harmonious urban redevelopment methods.

I. 서 론 1 1. 연구의 배경 및 목적 1 2. 연구의 범위 및 방법 4 3. 연구의 구성 및 흐름도 5 Ⅱ. 이론 및 선행연구 고찰 8 1. 재산권 8 1) 재산권으로서 부동산 8 2) 소유권으로서 부동산 10 3) 구분소유권으로서 전세권 13 4) 소결 16 2. 권리금 17 1) 권리금의 유형 18 2) 소결 21 3. 손실보상 21 1) 손실보상의 기준 22 2) 판례 23 3) 소결 24 4. 권리금의 적정보상 24 1) 권리금 보상의 적정성 24 2) 권리금 보상의 한계 25 3) 권리금보상의 개선방향 26 5. 보상관련 법규 검토 26 1) 토지보상법 26 2) 주택임대차보호법 34 3) 상가건물임대차보호법 36 6. 권리금 관련 판례 검토 41 7. 상가세입자 보상관련 선행연구 46 Ⅲ. 보상모형의 설정 51 1. 보상체계 문제점 및 차등보상 51 1) 보상체계의 문제점 51 2) 차등보상방안 53 2. 개선보상 모형의 구축 57 1) 모형의 분석내용 57 2) 지주 보상액의 산정 57 3) 세입자 보상액의 산정 58 4) 지주수익의 변화 58 Ⅳ. 실증분석 60 1. 조사대상 및 자료 60 2. 사업지구 보상현황 분석 63 3. 상가세입자 보상실태 분석 67 4. 개선보상모형의 모의분석 78 5. 지주와 세입자의 보상액변화 81 6. 상가세입자 보상의 개선방향 84 1) 상가 건물임대차 보호법 84 2) 토지보상법 시행규칙(제33조 제1항) 86 3) 토지보상법 시행규칙(제47조 제2항) 87 Ⅴ. 결 론 88 1. 연구결과와 시사점 88 2. 연구의 한계 및 향후 과제 90 참고 문헌 9