환경보호를 위한 토지이용규제와 재산권

환경보호를 위한 토지이용규제와 사유재산권의 관계를 검토했다.

The citizens` right of property is protected by the Constitution. But its contents and boundary shall be governed by legislators, which means there is nothing such as absolute property right in a society. To accommodate so many people in limited space and to keep the society sound and sustainable, government will use every means. But these policies often cause sufferings of private property owners. For example, if one`s land is decided to be within the so-called green belt area, her rights will undergo serious restrictions. That is, the right of construction on her own land will be gravely limited or prohibited.

The plaintiff of the case mentioned above asserted that it was unconstitutional to be deprived of beneficial use of the land even though originally it was suitable for building or cultivating. Unlike the laws of the U.S.A. and Japan the Constitutional Law provides that in case of taking, use or restriction of property right, just compensation should be given according to the statutes there on. If there exists such a compensation clause in a statute, there will be no special problem. But as the old city plan act, land use regulation is often established without compensation.

On this compensation matter, early view was that if the regulation went too far, the property owner had no obligation to endure it, and just compensation should be given to her. Until the decision of the Constitutional Court came out, the Supreme Court had repeatedly declared that zoning was within the boundary of administrative power of city planning and there was no ground for compensation. The view of the Constitutional Court in this case was that if persons confront serious hardship in making use of their land by laws without just compensation, it is inconsistent with the Constitution.

The forms of hardships arousing in the land regulation cases are ① When the original private use of land is gravely limited or prohibited by the act, ② When no beneficiary private use remains through the regulation and ③ When the plan is not executed within 10 years, and still private meaningful use is not allowed. In these circumstances, the owners can seek judicial review. The structure of constitutional protection of property rights in these cases is very similar to that of Germany. The German Constitutional Court has decided that the matter of just compensation is province of legislators, not that of judges.

Some scholars agree to the view of the Constitutional Court referring to the German construction, while others insist that Korean property right clauses in the Constitution do not coincide with that of Germany. In my opinion, the Constitutional Court`s decision is very rational interpretation of property right. The persons alleging particular hardship through land use planning can not get compensation directly from the article of Constitutional Law. Instead, they should bring suit to Constitutional Court seeking voidance of those clauses. Given the decisions, the Congress hurried to revise the statutes.

And also special laws were made to regulate the lands within the proper limit of property rights. The newly enacted statutes reflect the tone of the Constitutional Court. Paradoxically enough, although the Article provides compensation therefor are governed by law, substantially it seems to be controlled by the Constitutional Court. My point in this paper is that the Congress should pay more attention to making balance between public land use regulation and private property. In other words, there should not be regulatory taking without just compensation. When legislators draw a line between regulation without compensation and regulatory taking, the old theories of taking may be useful.

Under this theory, even though the regulation is for pubic interest, just compensation should be prescribed for the owner if it made her endure special burden or hardship. To decide the art and amount of compensation(or to rebuild the property right) is quite another que