기부채납 법리를 통해서 본 도시계획관련 법제 정비에 관한 연구

기부채납 법리에 비추어 도시계획 관련 법제의 정비 방안을 연구했다.

This study aims to conduct interdisciplinary approach of legal principles and urban planning system on the contributed acceptance. The term “contributed acceptance” means ‘the gratuitous transfer of ownership of property to the State by a person, other than the State, and acceptance thereof by the State’ under 「State Property Act」. Citing the Supreme Court precedent, the contributed acceptance means ‘contract of gift’ legally.

If it is difficult for the State to administer the contributed acceptance property, if the State does not require it, or if the contributed acceptance includes any condition, the head of government agency shall not receive such property as prescribed by 「State Property Act」. But the concrete cases to ‘administer and require the property’ are not found in this act and urban planning law concerned. Each relevant urban planing law has its different subjects of contributed acceptance. With this reason it provokes the confusion on the working-level urban planning administration.

To overcome the insufficiency of legislation, relevant urban planing law, 「National Land Planning and Utilization Act」 and 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents」 etc, should include the concrete categories of infrastructure to ’administer and require the property’ consistently. The contributed acceptance property has multiple attributes as follows: requisite infra structure, retrieval of gains made from development, contribution for public good. Relevant urban planing law should have the incentive provisions in accordance with the legal characteristics of the contributed acceptance property.

The term “contributed acceptance”, “gratuitous reversion”, “gratuitous conveyance” should be used consistently since the terms are frequently mix-used in the relevant urban planing laws creating confusion.