計劃制限과 損失補償에 關한 硏究 : 土地利用計劃을 中心으로

토지이용계획에 따른 계획제한과 재산권 손실보상을 연구했다.

In modern Constitutional states, the absoluteness of private property was acknowledged, end the individual's right to property was understood as a sacred, God-given, inalienable, and inviolate right. In present age, however, the absoluteness of the right to property is no longer acknowledged, and a social and communal character of the right to property are asked, it is permitted to restriction of the right to property by communal needs. That is to say, the state may expropriate, use, or restrict privately owned property for the benefit of society or the people, this phenomenon is constantly increasing as the scope of state activities widens.

Particularly, the restriction to the land property right came to intervene positively in real estate to promote the increasing of public welfare in living space with the utility use of land by a means of civil rights, since the administration process was recognized as a national obligation. An article which is in the 3rd clause of 23 article in Korean "the expropriation use or restriction and it's compensation of property rights done by Public necessity should be treated with law, and a lawful compensation of should be given", so the restriction for public use originated from public necessity is ruled and at the same time loss compensation to the restriction is ruled.

But each individual law(the law of national land use, the law of urban planning) includes the restriction rule in them, however they don't have any compensation rule, so the planning infringement is recognized as a social restriction in reality, the problem of compensation is occurred when the loss from restriction is reached the 'specific sacrifice', a cause of loss compensation, which exists above the range of social restriction. Therefore this paper considers the planning control with an emphasis on land use planning. and present improvement provision on loss compensation with discriminating between 'social restriction' and 'specific sacrifice'.

Summerizing the contents of this paper orderly, the introduction present the purpose, the methods and the extant of studying. In chapter 2, the concept, the basis and the contents of planning control and the land use planning are considered, and the meaning, restriction, the legal nature, the nature of public welfare of land use planning, and it's legal limits according to the essential attributes of property rights are studied. In chapter 3.

the theory of compensation explains the meaning of loss compensation and it's justification for existence and the nature of compensation claim, the basis of compensation and the discriminative standards between 'social restriction' and 'Specific sacrifice' are discussed. In chapter 4, the partial loss compensation problems which appear in planning effectuation process and the loss compensation rule in the current law of land expropriation and a formal objection to it's disobedience are discussed.

In conclusion, this paper is closed with the presentation of improvement provision on planing control for public welfare and loss compensation securing the private ownership to the property right through the above discussion.