公法上 土地所有權의 制限에 關한 硏究 : 土地의 公槪念과 관련하여 = A Study on the Restriction of Landownership in the Public Law:With relation to the Public Concept of Land

공법상 토지소유권 제한과 토지의 공공개념을 연구했다.

As the land is privately owned but simultaneously work as a basis for forming a territory and the common resource for living and producting of all people, it has a different criteria for value judgement. This has facilitated the idea of restricting the right of land ownership more strongly from every point of view, and people have become to agree to restrict the liberty to use, yield a good return from and dispose of their own land. Therefore, the right of land property has become recognized not the absolute liberty but the relative liberty and the guarantee of it has turned into the systematic guarantee.

The highly progressed industrialization and urbanization, however, has entangled us in severe land problems. During the last 20 years the highly progressed economic development has caused us to need more land for residential, public and other uses and furthermore, raised the price of land too high abnormally and made the land an object of speculation, which brought about critical economic and social problens, such as a distribution and equity problems, etc..

The occurrence of imaginary and speculative demands for land created another ones and a craze for land speculation in order to derive a windfall income, which caused a chaotic situation and resulted in the maldistribution of land between the rich and the poor. As a result, the rational solution of land problem has emerged as a political long-pending question and the national interest has concentrated on introducing the public concept of land enlargingly to solve it. The term, 'the public concept of land', though not officially approved as a scientific or legal term, has been in common use early in our society.

It seems that the national consensus that it is inevitable to adopt the resonabl public regulations to maximize the efficiency of using national territory and to increase the public welfare. Government legislatrd the law embodying the public concept of land to improve the land problem fundamentally, outgrowing the conventional short-term countermeasures. However, it is required that the land law system and other systems should be more fundamentally readjusted and all people should be continuously concerned about it.

Concludingly the restriction on the right of the private property should be executed on the more prospective basis from the viewpoint of developing, using and conserving national land. The developing and planning national land should be done under the recognition that conservation is as important as developing and utilizing. To back this up, the restriction on land use should be not relaxed but strengthened. And in administration also it is required to try to find the ways to activate the national economy by operating and managing land use rationally and efficiently.

목차 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 = 3 第2章 土地所有權槪念의 法的性質 = 5 第1節 現代土地法 課題 = 5 一. 序 說 : 土地問題의 狀況 = 5 二. 社會法으로의 土地法의 確立 = 8 三. 環境保全을 위한 土地法의 確立 = 10 四. 國際化 및 統一에 對備한 土地法 整備 = 11 第2節 土地所有權論 = 12 一. 土地所有權의 槪念 = 12 二. 土地所有權의 法的 性質 = 14 第3節 土地所有權의 國·公有化論 = 20 一. 土地公有의 意義 = 20 二. 土地公有論의 登場 = 21 三. 土地公有의 可能性에 대한 法的論議 = 23 第3章 土地所有權의 公法上 制限에 관한 一般的 考察 =30 第1節 土地所有權의 制限의 必要性 = 30 一. 土地의 特殊性 = 30 二. 土地所有權의 公法的制限의 現代的 槪念 = 32 三. 土地所有權의 公法的制限의 必要性 = 33 四. 土地所有權의 構造와 公權力의 土地市場에의 介入必要性 = 34 第2節 土地所有權의 制限의 根據 = 35 一. 法理論的 根據 = 35 二. 憲法的 根據 = 37 第3節 土地所有權에 대한 公法的制限의 樣態 = 42 一. 序 說 = 42 二. 土地計劃에 의한 規制 = 43 三. 土地制限에 의한 規制 = 44 四. 計劃制限에 의한 規制 = 44 五. 土地開發에 의한 規制 = 44 六. 土地去來에 의한 規制 = 45 第4節 土地所有權의 公法上 制限의 內容 = 45 一. 土地利用에 대한 制限 = 45 二. 土地所有에 대한 制限 = 51 三. 開發利益還收에 대한 制限 = 54 四. 土地處分에 대한 制限 = 55 第5節 土地