공공가치의 실현을 위한 개발이익환수제도의 개선방안 : A. Marshall의 토지의 공공가치 개념에 입각하여

토지의 공공가치에 기반해 개발이익환수제도 개선을 연구했다.

The land development plan in our society has been actively made nationwide progress along with the rapid industrialization and urbanization since the 1960s. Despite that the national economy had been developed while going through the process of high economic growth due to industrialization and urbanization, many other problems occurred such as high land prices or privatization of development gains. Because the land issues are closely interwoven with each other, it would bring the problems full circle unless cutting off the vicious link.

In order to resolve the land abuse, a lot of laws have been enacted since the 1980s, and also researchers have provided theoretical underpinning for governmental policies. Nevertheless, those land problems are included in the areas causing conflicts between public welfare and individual right, thus numerous constitutional litigations have been filed against the regulations related with restitution of development gain from the early 1990s to the Roh administration. As a matter of fact, several statutes were decided as unconstitutional or inconsistent with the constitution to be repealed or revised, which circumstance has made little difference under the current administration.

Development gain can be defined as various types, but it would be concluded as the concept of unearned income in terms of the origin of income. Such concept is derived from Labor-value theory of Microeconomics concerning the point that capital investor’s factor income is negated. It is paradoxical that a seemingly comprehensible concept of unearned income described as a simple phrase “if any would no work, neither should he eat" would not be feasible in real world, but it is a controversial subject that has been discussed among economists for the last 200 years.

The study is to establish a reasonable concept that provides a rationale for restitution of development gain from the schematic reasoning that development gain shall be recaptured as unearned income. The purpose of the study, based on the concept established in the study, is to define problems with suggesting appropriate policy alternatives through the analysis on the current system.

It would be crucial to redefine the meaning of development gain because restitution of development gain might have been misunderstood as it only indicates capital gain from tangible or intangible development while various foreign terms about development profits have been translated into and used as one word, “development gain.” In this study, development gain was defined as public value created by the public without efforts or costs of the landowner, being subject to restitution. A problem may arise to what extent the publicness should be acknowledged, which would be regulated by public investment and changes in land use planning.

Therefore, development gain subject to restitution can be defined as an increment created by public investment and alteration in land use from increased value of land. It is also necessary to simplify the object of restitution as a fair distribution of investment and profits occurred during real estate procedure. In addition, the clarification in targeting the pertinent business is required. Restitution should be applied to the cases where development gain is occurred by public investment and alteration in land use.

Since it is difficult to estimate when development gain being occurred in case of public investment, it would be appropriate that the business participant is subject to development impact fees at the time of transferring corresponding land after public investment, then followed development gain is recaptured through transfer income tax. Development gain can be calculated by deducting increased amount in similar case of neighboring areas and land price notified at the time of approving developmental plan from land value at the time of completing the public business.

Given that the complete redemption of development gain is impossible, 50% of restitution on total difference would be appropriate. In case of development gain caused by alteration in land use planning, restitution is applied to the surplus when the difference between land value before and after the land use transition exceeds natural rising value of similar vicinity land. Land value before land use transition is calculated by applying fluctuation rate of vicinity land value to individual official reference on the land value, and land value after changing land use is depending on the official calculation of land value.

25% of the total amount deducting natural rising value from the difference between land value before and after the land use transition would be appropriate for the charge and the collection of development gain. At the conclusion, the study investigated the improvement for restitution of development gain as the mean of realizing public value. First, the development business may be shrinking. If a government actively takes back development gain, developers would reduce the business accordingly. Therefore, the government needs to charge the minimum amount of development impact fees, along with adopting a flexible approach in managing the level of restitution concerning economic situation.

Second, any confusion for law enforcement or taxpayers should be reduced by establishing and managing practical and objective criteria through flexible management in applying the scope of restitution. Third, problems may arise for the use of development impact fees. According to the current procedure, the central government charges and collects the fee that 50% is reverted to Balanced National Development Special Account and the rest goes to the local administration, which is incorrectly employed. As the procedure in advanced countries, corresponding municipalities should charge, collect and execute the money for their own use.

Fourth, fairness depending on pertinent development plan can be problematic, thus the sense of relative loss should be wiped o