사업인정의 실효에 따른 재산권의 보장 - 재산권의 존속보장과 가치보장 관점에서

Abstract

The invalidation of approval of public projects can be understood as a system in response to a constitutional request that public interests must exist throughout the taking procedure by verifying public interests even after the granting of approval of a public project. Article 23 of the Act on the Acquisition of Land, etc., for Public Works and the Compensation (hereinafter “the Act”) stipulates that approval of a public project shall be invalidated if the project implementer does not apply for decision of taking within one year from the date of the notification of approval of a public project to prevent the legal status of the land owners from suffering uncertainty for a long time. Article 24 of the Act stipulates the invalidation of approval of a public project corresponding to the part where public interests do not exist due to the abolition or change of the project, that is, the part where all or part of land need not be used. If the requirements for exercising the repurchase right under Article 91(1) of the Act are met, the landowner may exercise the repurchase right to retrieve the land. The value guarantee of property rights for public necessity returns to the guarantee of the existence of property rights. If the landowner or related person suffers losses directly due to the invalidation of approval of a public project, the project implementer shall compensate for the loss, but the loss may rarely be attributed to the project implementer’s responsibility. Many Acts that stipulate quasi-approval of a public project have exceptional clauses that set the period of application for decision of taking as the period of implementation of the project. They effectively incapacitate the invalidation of approval of a public project due to the neglect of application for decision of taking. To mitigate a high likelihood of infringement on property rights, the application period can be governed under the unified provision of Article 23 of the Act and a new regulation on the extension of the application period may be examined to reflect the characteristics and progress of the project. In addition, there is no regulation on the time range of the invalidation of approval of a public project, which can cause confusion and controversy in practice, so it is necessary to insert the phrase “for the future” into the regulation.