공용수용에서의 정당보상과 비례성원칙

Abstract

Article 23.3 of the Korean Constitution stipulates that takings require ‘public necessity’, which can be judged based on publicness and allocative efficiency related to the public projects. In addition, the Article also requires ‘just compensation’. Also, Article 37.2 constitutionally stipulates the so-called proportionality doctrine. This paper probes, through a simple model, the nexus between this just compensation requirement in eminent domain and the proportionality doctrine. While only a few variables are included in the model, we intend to make them represent the most essential factors such as the ‘characteristics of condemners and condemnees’ and the ‘characteristics of public projects’, which have been emphasized in actual lawsuits as well as in academic writings in Korea. The literature in the field of law and economics has long recognized the premise that the benefits to condemnees from a taking should be proportionate to the costs borne by the conmdemnees, and that compensation must be warranted when the proportionality is not fulfilled. This view is equivalent to the traditional legal principle that compensation is necessitated when special sacrifice is incurred to condemnees. Nevertheless, this premise may become ambiguous while discussing actual disputes especially associated with the questions of whether and/or how much to compensate. Through the simple model in this paper, we intend to provide more explicit and precise implications concerning these critical questions. In particular, critical components will include the total benefits and the costs, the relative magnitude of individual benefits and costs to condemnees, the size of the beneficiaries and condemnees groups, and the magnitude of what condemnees receive as additional implicit in-kind compensation, etc. We highlight that all these components should be considered simultaneously. Finally, we establish a fundamental proposition that the customary notion of fairness or justness in the realm of takings compensation is completely consistent with the proportionality doctrine, consequently strengthening the likelihood of our arguments regarding the model to become workable formula to legal practitioners.