농지의 보전 및 전용 법제 개선

농지 보전과 전용을 규율하는 법제의 개선 방향을 검토한다.

The legal system of farmland preservation and diversion in Korea has unique characteristics in terms of its history and law-making behavior. Under land-to-the tiller principle of the Korean Constitution of 1948 and the Farmland Reform Act in 1950, helped to create a large population of independent farmers, while preserving the farmland and prohibiting the diversion in order to extend the performance of farmland reform Since 1960 industrialization and urbanization made much more demand to change from farmland to factory and housing lost, causing dilemma between high growth of economy and severe food security problem.

In order to solve this dilemma, there was several legislative efforts, for example, Act on the Utilization and Management of the National Territory in 1972 as primary law and Act on the Preservation and Utilization of Farmland in 1972 as its special law. The one has been transformed into the Farmland Act in 1994, while the other into the Act on the Land Planning and Utilization of the National Territory in 2002.

Speaking of the farmland, under the Act on the Special Measures for Development of Agricultural and Fishing Villages in 1990 could make the preservation method of category from the individual lot of land to zoning area(so called ‘agricultural development region’), taking after the Japanese legal system. This study suggests that preservation of farmland should mean the reasonable regulation of the diversion of farmland. Farmland is surely related to market failure and has multi-functionality and public economic effect as common goods. In order to ensure the effectiveness of the farmland conservation policy, new realization as well as the systematic development is required.

There are three ways to improve the system to ensure the effective farmland conservation, utilization and management. First, minimum farmland for food self-sufficiency should be secured. Securing total amount of farmland means securing the minimum farmland to maintain the certain level of food self-sufficiency. Expanding designation of the agriculture promotion area, strengthening of the farmland conversion restriction system and selective approval of the farmland conversion should be implemented.

Second, in order to promote agriculture and reduce the fallow ground rate, quality of the land`s arability should be improved with temporary reorganization of the farmland, establishment of agricultural roads and development of the profitable crops and the ideal crops that suit the local characteristics. Finally, in order to utilize and maintain the unique nature of the farmland in long term, tight supervision over illegal activities, accurate investigation of actual farmland usage and strengthening of the disposition order system should be implemented.

At the same time, in order to raise the transparency of the system, the management system should be regulated by law and the whole process should be systemized to establish the effective management system. This study seeks also to clear conceptual ambiguities around the concept of the farmland in field of Farmland Act. Specifically, farmland is defined as land used for cultivation without the consideration of nominal land category. In reality it is impossible for the authorities to review the transaction document substantially under the current Farmland Act.

Though its ambiguity had resulted from arbitrary decision during the farmland reform in 1950 and afterward political consideration of the farmer`s complaint, it has introduced so many problems in auction process. Only under the substantial review system it is possible for the authorities to review the requirement of farmers. Alternative solution is the reform of farmland act from present condition test to land category test regarding mismatching problem between present condition and land category.

In conclusion, this issue should be considered in the reforming process of the farmland transaction system: congruence for land use and nominal land category, adoption of farming permit system, registration of farmers, establishment of farmland management organization, and improvement of the procedure for substantial farmland transaction review.