매도청구권제도의 위헌성에 관한 소고

Abstract

In executing the real estate development project, it is a very important element to secure the project site in an optimal period and method as well as make a feasibility study with a focus on cost-benefit analysis. In this connection, the current legal system adopts the land expropriation method and sale request method as the compulsory means for securing the project site according to the type, nature and public nature of the development project, and the typical project of the sale request method is the housing rebuilding project. Private businessmen have the right of selling claims legitimately for acquiring the partial land that they didn’t acquire during constructing houses. But because of taking a long time and not so being helpful in exercising the right of selling claims to acquire the partial land, private businessmen may not exercise this right or understand it unnecessarily, which becomes the matter of effectiveness of the selling claims that is permitted for the purpose of public needs. Housing construction has public interests and implements the principle of public utilities stipulated by law as much as the individual ownership of the land has to be changed forcibly. The reason for permitting selling claims to the private businessmen is that besides this public interests, if housing site prices were paid excessively high, housing prices would rise as much, and therefore it is intended to restrain this appearance by paying fair prices. Though the right of selling claims by the housing construction is belong to the private law, its exercise procedure is very similar to the expropriation claims under the public law. Therefore, as long as housing construction is admitted to public utilities, it must be done smoothly by giving the expropriation claims to the private businessmen according to changing the current system. But after private businessmen have bought more than 80% of the necessary housing land, the expropriation claims might be given to them only to acquire the rest land.