租稅에 의한 土地所有權 制限法理에 관한 硏究 = (A) study on restriction law of land ownership by the tax

조세를 통한 토지소유권 제한의 법리를 연구했다.

Land is the base for human living as well as for national existence. Men cannot live departed from land, and any nation cannot exist without land. Moreover, land is the endowment of Nature which is the common resource of mankind. On the other hand, land remains permanent, but its supply is limited because it cannot be reproduced. Due to such attributes, land has various political, economic and social implications according to the historical background. For example, land was once the direct means of ruling, while affecting the social structure and hierarchy greatly. Thus, the thoughts concerning the ownership of land have affected the development of human history much.

Accordingly, the order of land or the thought of land ownership may well be the product of the historicla development, reflecting the political, economic and social order of the time. The capitalistic society evolved after the collapse of feudalism has brought about the materialistic wealth for us apparently. However, the contradictions inherent in the abundance of the capitalism have also requested us for great sacrifices. One of these contradiction is the unequal distribution of wealth. Under the capitalism system, not only the goods produced according to the principle of capitalism but also the land not producible by any producing form have not been distributed fairly.

Korea alone has not faced the problems of the capitalism involving land and labor disputes throughout history. These problems may well have been caused by the attribute of the capitalism itself in any capitalistic nation, although they differ more or less among nations depending on the area of national land, population and size of capital. In Korea, the ideology of capitalism could not evolve autonomously due to the Japanese invasion, and after the liberation, it was introduced recklessly for the rapid economic development. As the national economy grew, the problems involving land and labor rights emerged. and finally the nation is facing a total crisis in every respect.

The ownership under the capitalism is interpreted as exclusive whole right for a certain asset. However, in reality it would be controlled by various elements, while being limited socially by various social relationships. As the society has changed according to the development of capitalism, the conventional ownership system has also been subject to considerable ownership system has also been subject to considerable changes. In particular, the ownership involving land and labor rights has been challenged by the thoughts of social solidarity and public interests. It is conceived that various problems surrounding the land ownership may well be very natural due to its attributes.

Land is essential for human survival, but it can be neither reproduced nor replaceable. Moreover, it must not be the product of labor. In such senses, it may be very contradictory to understand the land ownership as an absolute property right as conceived by modern capitalism. Due to its physical attributes as above, the land ownership cannot but feature social or public nature more than any other property right. The history has also required the land ownership to be limited to some degree in this direction. First of all, the land ownership is be limited by the intervention of government in land market, which takes the form of land policies. One of these policies is the tax policy.

Although certain goals can be achieved by the tax system, it will face a certain limit under the economic order of capitalism because it takes parts of people's properties or incomes by means of public power without any specific compensation. In particular, the taxation as economic policy may threaten the basic economic order of capitalism or the private property system, causing the problem of restriction private rights. In this sense, the tax system as an economic policy accompanies the task of determining its scope and limit.

With the above conceptions in mind, this study was aimed at reviewing the tax-wise limit of land ownership by dividing it into limit of land acquisition and that of land uses and thereby determining its scope and limit to find the ways to utilize the land tax system for re-definition of land ownership concepts.

The land tax system should be re-organized as follows to make it efficient and fair and thereby help re-establish the concepts of land ownership; First, in consideration of the face the there is no alternative for land and that the land taxes are transferred from the economic superior to the economic inferior, the tax rate for acquisition and ownership of land should be lowered as much as possible. Second, since the capital gains from land are produced by social external economic effects, they should be duly returned to the society through the capital gain tax.

If the capital gains from land are returned to the society by menas of the capital gain tax only to control the privatization of land, the expected profits or the target of land speculations will lose their ground, eliminating the speculative demands for land fundamentally. Then, the current problems of land underlying the various political, economic and social problems will be able to be solved fundamentally.

목차 第1章 序論 第1節 硏究目的 = 1 第2節 硏究의 範圍 및 方法 = 4 第2章 土地所有權의 本質 및 制限 = 6 第1節 土地所有思想과 土地所有權의 本質 = 6 I. 土地所有思想 = 6 1. 土地의 特性 = 6 2. 土地所有의 法的 依微 = 7 3. 土地所有의 經濟的 意味 = 10 4. 土地所有의 政治文化的 意味 = 12 5. 土地所有의 社會文化的 意味 = 14 II. 土地所有權의 性質 = 17 1. 土地所有權의 私有性 = 17 2. 土地所有權의 公共性 = 19 3. 土地所有權의 私益과 公益의 調和 = 23 第2節 土地所有權 槪念의 歷史的 變遷 = 25 I. 古代의 土地所有權 = 25 1. 로마法上 土地所有權 = 26 2. 게르만法上 土地所有權 = 29 II. 中世의 土地所有權 = 32 1. 分割土地所有權의 成立 = 32 2. 分割土地所有權의 內容 =33 III. 近代의 土地所有權 = 37 1. 近代의 自由土地所有權의 成立 = 37 2. 資本主義的 自由土地所有權의 變遷 = 43 3. 資本主義的 自由土地所有權 槪念의 再定立 = 46 第3節 土地所有權의 制限 = 50 I. 土地所有權 制限의 根據 = 50 II. 土地所有權 制限의 前提條件 = 52 1. 公益優先 條件 = 52 2. 損失補償 條件 = 54 3. 法律에 의한 制度化 條件 = 55 III. 現行法上 土地所有權의 制限 = 57 1. 私法上 制限 = 57 2. 公法上 制限 = 60 IV. 土地所有權 制限의 範圍와 限界 = 65 1. 憲法上 土地所有權의 保障 = 65 2. 公法上 土地所有權 制限의 範圍와 限界 = 67 第3章 租稅와 土地所有權 制限의 關係