토지소유권의 공법적 규제에 관한 연구

토지소유권에 대한 공법적 규제의 내용과 필요성을 연구한다.

Our country has been faced since 1960s to serious urban problems as it commencing experience of industrialization due to the steady progress of economic development policy. Since therefore, as generalization of necessity for efficient and schematic use of the national land resources which is so restricted the involvement of public rights became inevitable.

The legal authority of such public rights as are of 80 items or more of laws of the National Land Utilization Act, the Consolidated Planning Act of the National Land, the City Planning Act, the City Redevelopment Act, the Promotion Law for Housing Construction and so forth, and these laws are being applied for restrictions of use of the land, expropriation and disposition as well as its profit. Under the modem welfare state there are much more public law restrictions being intensively expanded under the purpose of public benefit for administrative functions in order to promote public welfare besides such private law restrictions against the land ownership.

In other words, because of such public law restriction or limitation against the land property rights for public benefits under the schematic and efficient uses are on object of the property rights and especially for the land property rights which are assured by Column 1, Article 22 of the Constitution, the dual functions with the private benefit of private property system or the assurance of property rights become prevail.

According to Column 2, Article 22 of the Constitution, it provides that''exercising property right shall be appropriate to the public welfare", which clearly indicates that the private property right shall be exercised within and under the premise of society and the public. It is therefore, the private benefit of property right assurance and realization of public benefits by promotion of public welfare must be adjusted under the proposition of equivalent worthiness of the Constitution. In this article the writer would like to describe as follows : 1.

The public law restriction shall mean that the administrative subject mobilizes certain official power for restriction of free use, development or disposal of the privately owned land or structure under the rule of planned law in order to form the space of national land as living space corresponding to the esteem of human being. 2. Types of such public law restriction against the land ownership may be classified into expropriation for public use, Public limitation, change in use of the public purpose, public right of change in use, etc.. 3.

There is a tendency gradually strengthening the public law restrictions on the land ownership in order to develop, preserve or use of the limited land, or to prevent possible speculation practices. The issue will be how the public and private benefits are to be adjusted and to what extent the restriction shall be exercised. Speaking of the conclusion, the both private property system and the public welfare shall be construed an equivalent worthiness under the Constitution and therefore, the public law restriction/limitation shall recognize the scope which is not supposed to exceed and shall not insult essence of the property rights within the scope of equilibrium with the private benefit.

目次 = 0 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 公法的規制의 內容 = 5 第 1 節 計劃制限의 根據 = 6 Ⅰ. 憲法上의 規定 = 6 Ⅱ. 實定法上의 規定 = 7 1. 土地利用制限에 관한 規定 = 7 2. 土地開發制限에 관한 規定 = 8 3. 土地處分制限에 관한 法律 = 9 第 2 節 計劃制限의 內容 = 10 Ⅰ. 國土利用計劃制限 = 10 1. 一船的 行爲制限 = 10 2. 用途地域의 行爲制限 = 11 3. 用途地區의 行爲制限 = 17 Ⅱ. 都市計劃制限 = 19 1. 一般的 行爲制限 = 19 2. 用途地域의 行爲制限 = 21 3. 用途地區의 行爲制限 = 23 4. 用途區域의 行爲制限 = 26 第 3 章 公法的規制의 類型 = 31 第 1 節 規制의 傾向 = 32 第 2 節 使用·收益權能 = 33 Ⅰ. 公用制限에 의한 경우 = 34 Ⅱ. 土地區劃整理事業에 의한 경우 = 36 Ⅲ. 土地再開發事業에 의한 경우 = 37 第 3 節 處分權能의 制限 = 40 Ⅰ. 序說 = 40 Ⅱ. 制限의 手段 = 41 1. 土地 등의 去來契約許可制 = 41 2. 土地 등의 去來契約申告制 = 41 Ⅲ. 制限의 憲法的 限界 = 43 第 4 節 所有權과 利用權의 分離 = 45 Ⅰ. 遊休農地의 代理耕作制 = 45 1. 代理耕作制의 意義 = 45 2. 代理耕作者의 指定 = 46 3. 代理耕作者의 義務 = 47 4. 代理耕作者의 期間 및 指定解止 = 47 Ⅱ. 山林의 分收林制 = 48 Ⅲ. 草地의 代理造成制 = 49 Ⅳ. 代理建築制 = 50 第 4 章 公法的規制의 限界 = 51 第