土地利用計劃制限과 權利保護에 關한 硏究

토지이용계획 제한의 정당성과 토지소유자의 권리 보호를 연구했다.

1. Introduction Even though the regulation of a land use plan as an administrative plan can be justified for the efficient management of national land, public peace, order and welfare, the restriction of private right of land property through the regulation of a land use plan should be permitted only under certain limitations. Today we can see that intentional government infringement on individual freedom and property has been increasing for the promotion of public welfare. Although such infringements on private right of land property for public good are executed by government powers, they should not be unlimited and must be controlled inherently and socially under the constitution.

The regulation of a land use plan is a typical pattern among the regulation of plans, and is an example of the application of a binding plan. We can not deny the fact that the existing plans for land use have been strongly controlled by government powers for to the promotion of public benefit, while not paying any attention to the protection of private rights. This dissertation aims to study the effective ways of relieving the right in advance and of protecting the right afterwards as a solution the problems which result from the regulation of a plan. This study includes a discussion about the protection of rights which is closely related to the regulation of a land use plan.

Domestic and foreign textbooks on administrative law and related dissertations have been consulted for reference. 2. Theory on Land Use Planning (Regulation of a land use plan) The land use plan, as a part of the regulation of plans, is to adjust plural elements with respect to the limited land for public good, and to endow the land use with certain desirable orders, in order to prevent the disorder which may be brought about if we neglect it. It is a plan drafted for the purpose of using land appropriately, the most reasonably and effectively from a global viewpoint.

A public enterprise and an induced measure can be important means of securing the practical efficiency of a plan in areas like national land planning or local regional planning. What is important with regard to the protection of rights is the fact that the plan can bind the people, Moreover, a land use plan can have a great effect on regulating the general private rights, which we call a binding plan that is distinguished from a non-binding plan bearing some guiding nature. A Korean typical binding plan includes the area for use and the regional system used in urban planning or land use planning.

After investigating such systems in England, America and Germany where they have already achieved development, we will compare the use of the planning system of Korea and that of the advanced countries in order to grope for ways of practical application. 3. Pre-Protection of Right The procedures of pre-protection of right, which are made at the formation of the plan, are generally realized by means of administrative procedures. The reason why we emphasize the procedural right in the case of a plan regulation is as follows : in order to minimize the damages of the related persons, we must receive the opinions of them and hold a hearing or a public hearing at an early stage.

As a result, we can listen to their opinions and provide them with necessary information, which makes it possible to promote the land use plan that fits in with reality. The pre-protection of right is prescribed in the law of administrative procedures. The law of administrative procedures (draft) was made in July 1987 as a part of the pre-protection of right but has not yet promulgated due to certain circumstances. So, the same procedural law has been hastened for enactment in 1996. But, as is generally known, it lacks the efficiency as the law of administrative procedure since it does not include the procedures for the planning course which can be considered to be the very heart of it.

It should be complemented any way with respect to this. 4. Post-Protection of Right The post-relief of right in the case of the regulation of a land use plan has such principal contents as the theory of loss compensation, the guarantee of the plan and the disposability under administrative procedural law. First of all, loss compensation will be the main part of compensation for the infringed private property right caused by the regulation of a land use plan. Article 23 of our constitution stipulates only lawful compensation. Accordingly, two kinds of theories exist about loss compensation : the theory of complete compensation and the theory of considerable compensation.

The theory of complete conpensation argues that the compensation should be the complete recovery to the pre-infringed state, while the considerable compensation theory suggests that the amount of compensation can be insufficient considering public needs or social and economic circumstances. The theory of relative compensation seems to be proper since it accords with the spirit of our constitution and the principles of a social nation.

The second problem with the pre-protection of right is the occurrence of the right to request, that is they can require, the continuity of the existing plan and the trust in the plan and investment when their private property right is restricted by the land use plan formed by an Administrative sovereignty like the state. This theory originated from a judicial precedent in Germany. Though is has not been actualized in Korea, I wish only to introduce the existence of such a system. The third problem is the possibility that the plan for land use would be litigated administratively.

A key point is that litigation is impossible when the nature of the plan is considered as legislation, while possible when considered as disposition. When the plan is binding, illegal or unjust, litigation against the plan should be permitted in order to relieve the right infringed by the plan. Accordingly it is judicially proper to admit the character of disp