토지재산권보장과 경제질서의 헌법적 구조 : 토지재산권관련 입법의 합헌성 제고방안을 중심으로

토지재산권 보장과 규제 입법의 헌법적 구조를 연구한다.

For the purpose of guaranteeing land property rights, this study investigates how the Constitution exercises its regulatory power with vitality in implementing the connection between laws and policies within the institutional framework of constitutional management, rather than remaining confined to the legal provisions of constitutional codes. Since its early days, the Constitution of South Korea has maintained an in-house system of norms in its complete form within its constitutional management mechanism governing land property rights. The essence lies in Article 23 of the current Constitution, which contains general provisions about the guarantee of property rights.

In the current Constitution, under Article 23, Clause 1, Sentence 1, it stipulates the boundaries and limits of a guarantee of property rights by clarifying the principle of guaranteeing property rights. Within this scope, Article 23, Clause 1, Sentence 2 grants legislators extensive discretion for legislative formation, which is related to property rights and connected to the social constraint of property rights in Clause 2. Article 23, Clause 3 prescribes that one should be compensated for expropriation in excess of this social constraint of property rights.

The guarantee of property rights, rooted in Article 23, is supported by Article 37, Clause 2 of the Constitution under positive law, providing the principle of injunction against infringement on the fundamental content of property rights and the principle of proportionality. In addition, the Constitution of South Korea uses its power in a way where discretion for constitutional formation is exercised within the boundaries and limits of a guarantee for property rights in constitutional trials. The basic institutional framework for constitutional management regarding this guarantee of land property rights has been maintained until the present day.

After the conversion of state administration to government initiatives since the 1960s, however, national land development was pushed forward in a fast, visible, comprehensive, and systematic way. In this situation, the target of constitutional interest was not land as the object of private property rights to guarantee, but national land for the object of use and development. There was a change in policy viewpoints over the same material, and two policy values that were advocated for on the use and development of national land were efficiency and balance.

Accordingly, grounds for the efficient and balanced development of national land were added to the economy chapter of the Constitution, based on which the government began to form comprehensive development plans for national land and enacted various acts on national land development. Indeed, this signaled the full-blown operation of a dynamic linkage system among the Constitution, laws, and policies. This effectively meant various interventions in land property rights at the state level.

During this period, Article 23 of the Constitution, which contains general provisions about property rights, no longer served as the center of the constitutional management mechanism related to land property rights. The center of gravity shifted to the economy chapter covering Article 120, Clause 2 and Article 122 of the current Constitution. Article 120, Clause 2 stipulates that the state can make necessary plans for the balanced development and use of national land. Article 122 stipulates that the state can impose restrictions and duties needed for the efficient and balanced use, development, and conservation of national land. However, the situation has changed since the mid-1970s.

Unlike the previous period, land issues no longer remained at the level of contemplating how to secure necessary lots in a development process. The urgent priority of land policies was a reaction to land speculation. This led to a discussion about the public concept of land ownership. An approach was made to the logic of the public concept of land ownership, based on the awareness that the old social constraint of land property rights was insufficient. The craze around the public concept of land ownership reached its peak during the second half of 1988 when the Comprehensive Real Estate Plan (August 10 Measure) was announced.

This plan was followed by three acts on the public concept of land ownership enacted at the end of 1989: the Ceiling on the Ownership of Housing Sites Act, the Restitution of Development Gains Act, and the Land Excess-Profits Tax Act. The concern over the public concept of land ownership sank down in the late 1990s. The state abolished the Ceiling on the Ownership of Housing Sites Act and the Restitution of Development Gains Act, which worked to restrain land demand, trying to counter the collapse of the real estate market as a consequence of the foreign currency crisis.

Now the old era of the state's one-sided government administration is the expected parliamentary democracy centered on political parties. It is time to overhaul the constitutional management mechanism that regulates land property rights for its proper operation. However, the age of parliament-centered legislative formation contains latent challenging factors, such as the issues regarding the representation of the National Assembly, partisan logic, the characteristics of administrative laws, and the limitations of constitutional trials.

The study suggests plans to establish a proactive screening system for constitutionality during legislative formation and enhance the effectiveness of adjudication on the constitutionality of statutes at the Constitutional Court level to deal with these issues. 이 연구는 토지재산권보장을 대상으로 헌법이 헌법운용의 제도적 틀 속에서 법률 및 정책과 연동(連動)하여 어떻게 현실에서 생동감 있게 규범력을 발휘하는지를 살펴보기 위한 것이다. 토지재산권보장과 관련한 헌법운용의 메커니즘은 우리 헌법의 출 범 초기부터 자체 완결형 규율체계를 갖추고 있었다. 그 핵심은 재산권보장의 일반조항인 현행 헌법 제23조이다. 현행 헌법 제23조 제1항 제1문은 재산권보장의 원칙을 천명함으로써 재산권보장의 테 두리와 한계를 제시한다. 그 범위 내에서 제23조 제1항 제2문은 제 2항의 재산권의 사회적 구속성과 연계된 재산권에 관한 광범위한 입법형성의 재량을 입법권자에게 부여하고