土地收用에 있어서 損失補償 基準에 관한 硏究 = Study on the standard of compensation for damages form land expropriation

토지수용에 따른 손실보상 기준과 적용 문제를 연구한다.

The modern nations are performing public businesses in various fields for the purpose of promoting the welfare of the people. In the process, in order to smoothly perform the public businesses and promote private property rights, the compensation system should properly play its roles as the means to adjust the public interests and the private interests. In other words, appropriate criteria for compensation should be established and the application thereof to individual compensation should be secured.

For these reasons, the Constitution declares ‘the reasonable compensation’ in Article 23 Section 3 as the criteria for loss compensation, and individual laws including the Land Compensation Related Act provide for compensation by reasonable prices, exclusion of development profits, and supporting life compensation, etc. This study seeks to come forward with the following reasonable and developmental improvement methods by analyzing the content of system and the management state of the criteria and the application.

First of all, as to the reasonable compensation under the Constitution, relevant theories are divided in to the complete compensation theory, the substantial compensation theory, and the compromise theory. However, in particular, there are no clear legislative provisions of the concrete extent to which compensation should be provided to losses incurred as a result of infringement of property rights. The content of reasonable compensation may be finally determined by legislative examples of various nations and the social values that underlie the Constitution. In this respect, the constitutional provisions have been changed several times.

The complete compensation should be meaningful from the perspectives of the history and property guarantee of the Constitution. However, as the theory focused on the traditional compensation in kind, the complete compensation theory is not sufficient to cover today's enlarged compensation concepts, taking into account the fact that not only the property rights but also life rights are infringed upon as the development projects are performed on a large scale as a result of the enlargement and strengthening of administrative functions.

Secondly, out of the criteria for compensation under the laws, in the first place, as to the compensation by reasonable prices, the concept of reasonable prices is not only ambiguous, but also in fact fails to accomplish the inherent functions because reasonable prices, namely reasonable compensation, have not been reached as a result of the low realization of publicly announced land prices introduced as an alternative for the purpose of objective loss compensation and exclusion of development profits, and the non-developments of appraisal methods. With respect to the appraisal of criteria for publicly announced land prices, this study has examined and analyzed the prior studies on the realization of publicly announced land prices.

As a result, this study has found that because of the low realization, the compensation prices calculated based on the criteria fail to reach reasonable compensation and therefore bring about side effects including the infringement of private property rights, and resistances to compensation. Therefore, relevant laws should be put in place, for purposes of promoting the realization of publicly announced land prices, changing application scopes of publicly announced land prices, examining publicly announced land prices, maintaining independence of determining institutions, improving compensation appraisal methods, shortening the period for reconsideration application, etc.

Thirdly, with respect to the relocation measures for life compensation, the scope and method of relocation measures are different depending on who the project performer is. From the perspectives of individual land owners whose lands are expropriated, they are the same in that their life foundations are lost without taking into account the features of project.

As the methods to take measures for lives of such regional residents, it worth considering the method that the subject and scale for supply of lands are determined taking into account the prior project scale and the conditions of life occupation, and a person compensated by conference is first given the right to choose the locations for the purpose of smooth promotion of public businesses. Further, during the period of project, regional residents should be first employed at the construction sites and regional residents should be made to be first hired at the construction sites.

During the period of development, upon request of low-income social levels, including persons to receive basic lives who are having difficulties to have provisional houses where relocating persons are to relocate, the business performer should introduce financial institutions for lease funds. Fourthly, the issue of business compensation has arisen because of the necessity to compensate for losses resulting from noises, vibrations or losses resulting from the infringement of the right to have the sunlight incurred as a result of compensations other than the compensation for economic and social losses, as to which current laws have some relevant provisions.

In order to solve such a problem, such measures should be taken as the relocation measure business is performed in regions with serious noises or vibrations or the land purchase request system is provided, etc. Moreover, since the current Laws of land Compensation does not have any provision as to the determination and objection methods of business compensation amounts, the period for objection application should be specified and certain procedures should be arranged including the procedure under which the expropriation committee may request reconsideration where no agreement is reached between the parties in question. One nation's compensation system may enable us to confirm

제1장 서론 1 제1절 연구의 목적 1 제2절 연구의 범위와 방법 3 Ⅰ. 연구의 범위 3 Ⅱ. 연구의 방법 4 제2장 손실보상의 대상과 기준 5 제1절 손실보상 대상으로서의 재산권 5 Ⅰ. 헌법상 재산권의 개념 5 Ⅱ. 헌법상 재산권보장의 내용 7 1. 사유재산제의 보장 7 2. 재산권의 법정주의 8 3 재산권의 존속보장과 가치보장 8 제2절 재산권의 제한과 보상근거 11 Ⅰ. 재산권의 제한 11 1. 재산권의 사회구속성 11 2. 재산권의 사회구속성과 공용침해 12 3. 재산권에 대한 공용침해와 보상 14 Ⅱ. 재산권의 사회적 제약 15 1. 형식적기준설과 실질적기준설 15 2. 경계이론과 분리이론 18 제3절 보상법제상 손실보상기준 26 Ⅰ. 헌법상 손실보상기준의 변천 26 1. 헌법상 손실보상기준의 의의 26 2. 헌법규정의 변천과 손실보상 기준의 해석 35 3. 각종 법령에 의한 보상제도의 변천과정 46 Ⅱ. 보상가의 결정방법 49 1. 기준지가 49 2. 공시지가 50 3. 실거래가격 54 제3장 외국의 손실보상제도 65 제1절 미국 65 1. 의의 65 2. 미국의 손실보상기준 66 3. 이주대책 및 생활재건조치기준(Relocation Act) 67 4. 보상과 관련된 주요 판례 69 제2절 독일 73 1. 의의 73 2. 손실보상의 기준 73 3. 보상(Entschädigung)의 원칙 등 74 4. 생활보상과 사업손실보상 75 제3절 프랑스 77 1. 의의 77 2. 손실보상의 기준으로서 정당한 보상 78 3. 손실보상의 실정법적 근거 86 4. 손실보상의 내용 87 5. 생활보상과