土地去來許可制의 法理에 관한 硏究 = (A) Study on the Law Principle of Land-Business Permission System

토지거래허가제의 법리와 토지소유의 공공성을 연구했다.

As the essential foundation of the human existence and the indispensable financial currency of the human existence, the land has the characteristics of immovability and non-expansibility, and became the basis of structure and organization in the Pre-Modern Nation and Society. Today, the land problems is derived from the contradiction happening between the personal and exclusive character of land ownership and the social and public character of land, and becomes serious together with the high level of Capitalism. In order to solve these land problems, the government concerned restricts the land business and then protects that the land becomes the target of speculation.

Therefore, it is reasonable obligations of nation to plan the balanced development of nation as the land of limited resources is reasonably used and properly dealt with. It is the important restriction on the free business of land to execute the land-business permission system in our country, which secures the private-property system systematically and searches for the economical order of Capitalism, and moreover, it limits the freedom of the job selection and or residence moving, and therefore becomes the infringement important on the guarantee of fundamental rights.

The right of property in land has taken the position of the most important and typical property right through the whole history. When it is regarded as the least freedom of human and the progress controlled from the out-side, the exclusive possession of the property is needed and it needs to secure the private system for guaranteeing these exclusive possession without the infringement of the other party. In these views, the land-business permission system has the unconstitutional element, and therefore the public purpose for execution of the land-business permission system is to accomplish the method plan shown in the conclusion, and these executions must be certaninly reconsidered.

The sociality of ownership is to be acknowledged according to the concept change of ownership right, but we can not impair the fundamental idea of the capitalism and the liberal democratism to stress the sociality of the ownership right.

目次 = 1 Ⅰ. 序論 = 5 1. 硏究의 目的 = 5 2. 硏究의 內容과 方法 = 8 Ⅱ. 土地所有權에 관한 一般理論 = 11 1. 土地의 財産權으로서의 特性 = 11 (1) 序 = 11 (2) 所有權 一般에 共通的인 性質 = l3 ① 私有財産權의 法的 表現 = 19 ② 自然法的 人權으로서의 所有權 = 14 ③ 非基本的 人權으로서의 所有權 = 17 ④ 土地財産權의 構造와 土地所有權 = 19 ⑤ 土地財産權의 本質 = 21 2. 土地所有權의 社會拘束性 理論 = 26 (1) 序 = 26 (2) 國體主義的 財産權觀 = 27 (3) 新自由主義 = 30 (4) 社會國家思想 = 33 3. 土地所有權 保障의 思想的 基礎 = 33 (1) 序 = 33 (2) 人間性 理論 = 39 (3) 社會的 機能·效用理論 = 37 (4) 道德性 理論 = 40 (5) 勞動에 의한 所有理論 = 42 4. 土地所有權 保障의 解釋과 祉會拘束性 理論의 批判 = 43 Ⅲ. 土地去來許可制의 立法例 = 48 1. 序說 = 48 2. 日本 = 49 (I) 序 = 49 (2) 土地去來許可制 = 50 (3) 緊急土地對策 = 51 3. 獨逸 = 53 (1) 序 = 53 (2) 土地去來法에 의한 農地와 林野의 去來許可制 = 54 (3) 都市建設促進法에 의한 再開發地城內의 土地去來認可制 = 57 4. 自由中國 = 58 (1) 土地의 去來規制 = 58 (2) 地價申告制度 = 59 5. 英國 = 60 Ⅳ. 韓國의 土地去來許可制의 現況 = 63 1. 土地去來許可制 = 59 (1) 目的 = 63 (2) 許可對象土地와 許可對象契約 = 63 (3) 許可節次 = 66 (4)