공익사업을 위한 간접손실보상에 관한 연구

공익사업으로 인한 재산권 침해의 간접손실보상 기준을 연구했다.

This paper mainly focuses on the proper standard of compensation for the infringement of individual property right. Leading points of the paper regarding justifiable compensation presented in article 23 are as follows: · The range of justifiable compensation in the constitution. · The standard of compensation featured in related laws in accordance with the concept of justifiable compensation in the constitution. · The necessity of reasonable standard of compensation for the infringement of individual property right such as the expropriation of private real estate, which secures both public and private interests in compensation.

To reach this conclusion, the study is progressed with the dogmatic method and the comparison of foreign law. By the dogmatic research search for the scope and limitations of basic rights as constitutional guarantees of property, of right to living and to environment. Dogmatic access to the scope and limitations of compensation would be complemented with the comparision of foreign law. The study proposes some alternatives to amend the Land Compensation Act in Korea. In modern constitutional states, a property right such as real estate is believed to be an absolute and divine right.

However, with a progress into welfare states, a property right is comprehended, rather than an absolute right, as a relative right that can be restricted for public interests. The right of property shall be guaranteed for any citizen by the constitution, just compensation shall be paid in the case of expropriation, use or restriction of private property from public necessity. The legal character of compensation is based on the principle of just compensation in the sacrifice for the social adjustment. Therefore, a constitutional principle is that the contents and limitations of compensation shall be reenacted.

Also, expropriation, public use or restriction of private property from public necessity and compensation shall be ruled by a law. Operation subject of public project shall pay for the direct loss of private property from public necessity. The loss by the public necessity shall cause not only direct material infringement for property but also another loss such as incidental economic loss and reconstruction of life for land owner. For the landowner, who takes residence out of public business district, can be enforced the development loss like a land value devaluation, and environmental damage such as destruction of the living environment, noise, vibration and violation of right to sunshine.

The reason for the resistance to public project by the landowner, who takes residence in the public business district, and by the groupe, who lives out of the public business district, can be caused that the compensation is not complete. The contents and limitations of indirect loss can be interested by the academic perspectives on public law. There are three reasons on the social conflict in the sector of compensation for the implementation of public service. First, social limitations on the property right are manifested in Article 23 of the constitution in Republic of Korea.

The section 1 of article 23 is stating that a property right is reserved in the constitution, which confirms that it belongs to constitutional human rights. Section 3 is declaring that expropriation, public use, or limited use of individual property can be executed for public interests. but, social conflict occurred in the decision-making process for directly required land to the public service and goods between the land owner and operating subject. There is a close connection between the guarantees of property on section 1 of article 23 in the constitutional law and the principle of just compensation on section 3 of article 23.

Second, the damage of land owner by the carrying out the public project leads to the deprivation of land or goods in the public business district but also the deprivation of living conditions such as residence or business as usual in the public business district. Because the landowner has to move out inevitable, he requires moving expense of household goods and a compensatory measure for lockout or suspension of business and a countermeasure against former living conditions.

But the limitations of compensation from the public project shall be determined by Act on the principle of just compensation in the constitutional law, the extent of public business operator shall be subject to restriction. This issue is based on the principle of just compensation in the sacrifice for the social adjustment, has close relevance to the subject, just as the scope and limits of compensation in the administrative relief law. Third, the damage by carrying out the public business occurs not only limited in the public business district but out of the public business district such as the environmental harms like noise, vibration, odor.

The compensation law in many countries is restricted within the economic and social compensation for loss of land, goods or property in the public project district. Physical and technical loss out of the public project district can not be solved by the compensation law, but by the theory of claim in private law. This procedure occurs serious problems, the solution by the private law is based on the cause by the public law such as the carrying out public necessity. The compensation for loss are restricted within private law, because the affected person has to prove the illegality and fault of damage occurred carrying out public project.

This problem has to be dealed with the theory of compensation on the administrative law, that holds on the interim area between private and public law. Recently, with an attempt to enlarge the range of compensation and improve the standard of it, it is strongly contended that any damage to living conditions should be compensated for. It will lead to a conclusion that justifiable compensation in the Constitutional law includes 'indirect loss compensation' in