都市再生에서의 私有財産權 保護에 관한 硏究 = (A) study on the protection of private property rights in the vitalization of urban regeneration

도시재생 과정에서 사유재산권 보호 방안을 연구했다.

As the suburbanization of large city and the decline of downtown have happened since 1950s, the advanced nations like Great Britain and the U.S.A. have faced various urban problems like the hollowization of old sections of city, the deterioration of urban infrastructure, the increase of unemployment rate, social deviance and crimes. Besides, in 1990s, the environmental pollution like destroying green areas resulted from the city development was emerged as a serious problem. Accordingly, the advanced nations began to be interested in the ‘urban regeneration’, as a complex way to fundamentally solve such urban problems.

As Korea also experiences various, serious urban problems that the advanced nations did past, it emphasizes the urban regeneration. On April, 2013, the National Assembly passed the ‘Special Act of Revitalization and Support of Urban Regeneration’. This study tried to provide the necessity of urban regeneration as a world-trend, the development process of urban regeneration, and the theoretical basis to institutionally justify the urban regeneration.

And this study intended to suggest a good direction for the urban regeneration and to search for legislative ways to revitalize it, and further to propose a solution to harmonize between the constitutional preservation of private property rights and the urban regeneration. Urban regeneration means the activity to economically, physically and environmentally revitalize a declining city because of reasons like the decrease of population, the change of industrial structure, or the city’s indiscreet expansion through strengthening local capacity, introducing or creating new functions, and utilizing local resources.

That is, the urban regeneration can be considered as a comprehensive approach in that the existing city which is relatively declining because of the reasons like the change of industrial structure, the city expansion focusing on development of new city or new town can be recreated as a competitive residence environment by revitalizing itself economically, socially and culturally as well as can be developed through physical and environmental maintenance projects like rebuilding or redevelopment.

As the urban regeneration has longitude purposes like the maintenance of backward section and its environment, the improvement of residential space, the reduction of poverty, the balanced development of city, so it is the concept compassing the principle of constitutional state, the principle of cultural state, the balanced development of regions and social unification, so it can be constitutionally justified from the viewpoint of public interest or public welfare. Also the urban regeneration can find its constitutional basis from the prescription of basic rights like environmental rights and the cozy residence rights.

Urban regeneration can find its juridical basis as the revision principal of private autonomy from the view point of public welfare. Urban regeneration can be carried out through individual laws for the development of existing city and the improvement of its residence environment, but for revitalizing the urban regeneration, it needs to enact the ‘basic act for urban regeneration’ so that the constitutional regulation as a basis of justification for urban regeneration and the urban regeneration-related regulations which are scattered in various laws can be unified and systemically organized.

Also the basic act for maintenance of city environment and the basic act of resident environment are needed to be enacted together. In that the urban regeneration should be developed in various ways including the existing way of city development, it contains the potential to collide with local people’s private property rights. In comparison with existing city development projects, the urban regeneration has more public welfare characteristic, so is more possible to be justified.

However, the urban regeneration may be problematic related to the public expropriation and the public limitation among the public invasion types of the Clause 3 of Article 23 of Constitution Therefore, concerning the urban regeneration, it needs to clearly describe the meanings of social reversion of property rights presupposing the non-compensation, and the public necessity as a requirement of public limitation requiring the compensation. Especially, when a private company exercises its eminent domain right, it can be a hindrance against the urban regeneration, and such right execution for private interest can make the urban regeneration be met the requirement of public necessity.

Besides, related to the rebuilding project and the redevelopment project, there needs some institutional maintenance in order to meet the principle of private autonomy and to give the business compensation for store tenants.

第1章 序 論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 方法 및 論文의 構成 = 5 Ⅰ. 연구의 방법 = 5 Ⅱ. 논문의 구성 = 6 第2章 都市再生의 意義 및 都市再生法制 現況 = 8 第1節 序說 = 8 第2節 都市再生의 意義 및 都市再生의 必要性 = 9 Ⅰ. 도시재생의 의의 및 범위 설정 = 9 1. 도시재생의 의의 = 9 2. 도시재생의 범위설정 = 16 Ⅱ. 도시재생의 필요성 = 21 1. 우리나라 도시쇠태의 실태 및 특성 = 21 2. 도시재생의 필요성 = 26 第3節 外國의 都市再生政策에 관한 考察 = 28 Ⅰ. 외국의 도시재생정책 = 28 1. 일본 = 28 2. 프랑스 = 35 3. 독일 = 41 4. 미국 = 47 5. 영국 = 50 Ⅱ. 외국의 도시재생정책의 특색 = 56 第4節 우리나라 都市再生의 發展過程 = 58 Ⅰ. 도시재생의 전개과정 = 58 Ⅱ. 도시재생사업의 유형 = 60 Ⅲ. 우리나라 도시재생법의 발전과정 = 63 第3章 都市再生 活性化를 위한 法制的 改善方案 = 65 第1節 序說 = 65 第2節 都市再生 活性化의 法的 正當化 論據 = 65 Ⅰ. 공법적 근거 = 65 1. 도시재생의 의의 = 65 2. 도시재생사업과 공익 내지 공공복리 = 67 3. 공공복리 내지 공익과 국가목표 및 국가목적 = 75 4. 도시재생과 기본권 보장 = 84 Ⅱ. 사법적 근거 : 사적자치와 공공복리의 관계 = 93 1. 사법의 기본원리에 관한 견해 = 93 2. 헌법상 사적자치의 의의와 재산권보장 = 96 3. 헌법과 사법의 관계 = 98 第3節 우리나라 都市再生法制 및 都市再生事業의 問題點