수용 목적 공익사업의 변환에 있어재산권 보장을 위한 제언

Abstract

Article 91(6) of ‘Act on the Acquisition of Land, etc, for Public Works and the Compensation’(hereinafter “the Act”) restricts the repurchase rights. In case that the expropriated land is not necessary any longer for the public work, the original owner of the land may execute repurchase right. Nonetheless, in case of the alteration of the public works that the expropriated land can be used for the purpose of another public project being equipped with certain kinds of requirements, the repurchase right shall be restricted. The Constitutional Court decided that Article 91(6) of the Act is constitutional. But I object to the conclusion of this decision. It is not a waste of administrative power to go through the expropriation decision adjudication again. Because the expropriation adjudication procedure for another project has an important purpose of verifying public interest. The permission of a public project and the expropriation adjudication should be considered to be organically intertwined with each other to form the expropriation procedure, and verification on public interest should be conducted throughout the expropriation procedure, from the permission of a public project stage to the expropriation adjudication stage. There are no regulations on the criteria or procedures for examination of the alteration of the public works. In fact, there is no way for the repurchase right holder to dispute the illegality of the alteration of the public works. The alteration of the public works is unconstitutional in violation of the repurchase rights as the property rights, and should be abolished.