개발제한구역의 개선과 주민의 권리보호에 관한 연구

개발제한구역 제도의 개선과 주민의 재산권 보호 방안을 연구했다.

Land isan essentialelementforpeopleto liveand isused for residential space and cultivation of provision purposes. Moreover, land in present days functions as money. The price ofland is different according to the location of land, i.e., how well developed transportation,culture,education. In the1970s,Korea madevariousdevelopmentprojectssuch as commercialdevelopment,industrialdevelopmentfornationalgrowth. In 1971 the greenbelt was designated to secure healthy living environment by preventing disorganized expansion of cities and preserving natural environment around them.

In the beginning, greenbelt became a big issue.Government that focused only on economicgrowthandindustrializationwastaking measurestosecure comfortable life forthecitizens and naturalenvironmentalong with nationaldevelopment.However,greenbeltdid nothavepositivesides only. Not only was state-owned land designated but even the private-owned land was appointed, and it was considered uncompensated social constraint leaving property rights restrictions on relevant local residents.

Property rights restrictions of resident, in other word sland in the greenbelt, were not allowed for construction and even renovation/maintenance needed permission from the administrative office.For these reasons,the price of land in the greenbelt dropped. The compensation for public use restriction due to publicneeds is regulated even in the constitution allaw. Article 23 Section3 of the Constitution states that ‘Expropriation, use or restriction of private property from public necessity and compensation there for shall be governed by Act.

Provided, that in such a case, just compensation shallbe paid.” However, in the Urban Planning Act it was an indivisible article about the greenbelt that only stated regulation of limit due to public needs but not the just compensation.

The residents of the greenbelt requested a violation of the constitution evaluation saying that ‘it is a violation of the constitution to not have compensation standards when damage has been done that exceeds social restriction from designating greenbelt due to Unban Planning Act Article21.’ The Constitutional Court decided constitutional discordance adjudication to wards the Urban Planning Act which only has regulation ofrestrictions butnotthe compensation standards. The decision to take constitutional discordance adjudication instead of constitutional violation was for legal stability and until new law was established it was forbidden to make further greenbelts.

In 2001, Act on Special Measures for Greenbelt Designation and Management was established and in 2002 it was enacted into Planning and Use of Land Act while the Urban District Act was abolished. Only, the regulation on greenbelt of the Urban District Act went into the Planning and Use of Land Act as it is and it was not actually an amendment of the greenbelt. Currently, in the greenbelt the in demnification for loss is given only in the case where the land is unusable in anyway as it is seen to be expropriation analogous violation.

Expropriation analogous violation is a conceptembraced when property rights exercise and use is impossible due to restrictions that nothing can be done to the relevant land. Following this, indemnification for loss is given and the relevant land changes to state-owned land. However, if that recipient being limited was taken into consideration, it is considered acompensation for a specific person rather than the greenbelt and therefore cannot be seen as a direct compensation for the greenbelt. In the Special Measures for Greenbelt Act, there are indirect regulations on exemption for residents of the greenbelt and community support program.

However, the fact that you need to satisfy certain requirements to receive the exemption creates problems interms of fairness. The recipient being limited is an example. Also, community support program is just a business for the convenience of the area rather than a practical compensation for the greenbelt due to the fact that the people subject to the program a reresidents of the greenbelt and those who have access to the area. For a more direct and practical means of solution, there are ways to indemnify and litigate.

The state compensation could include the case where property loss occurring from nonfeasance due to legislator, i.e., member of the national assembly since they fall under civil servant, makes illegal act of professional conduct of civil servants, but the precedent judges ‘first, interms of lawmaking the member of the national assembly in principle has administrative responsibilities in relation to the citizens as a whole and does not have legal liability of each individual citizen’s rights.

Therefore even though the member of the national assembly’s legislation content is clearly violating constitutional words, if it is not a special case such as legislated that year it is not considered an illegal act of the State Compensation Act Article 2 Section 1. Second, a small obligation to compensate might be acknowledged to an extremely exceptional reasons recognized such as you still deliberately or by mistake do notabide to the legislation until a good bit of time passes even though you bear the legislation obligation.

Also, there is no room to establish illegal act caused by omission from the beginning in a case where concrete legislation responsibility itself is not recognized like the above mentioned cases.’ Therefore, claim for state compensation about designating legislation and the omission of the legislator for compensation standards cannot be made for the greenbelt. Finally, the greenbelt was considered social constraint for the reasons that greenbelt designation is forpublic needs and pleasant life, together with natural environment preservation.

However, in modern times where the concept of ‘public needs’ is expanding, the tendency for guarantee of property rights of individual to reduce will occurand like greenbelt designation does not ha