개발이익환수제도의 유형과 위헌심사기준에 관한 小考

Abstract

Betterment Recapture Systems are closely connected with people's basic rights from the viewpoint that they tend to infringe on basic rights by usurping some or all development profits from the persons who earned them. It is evident that these systems should not violate the constitution. However, in reality some betterment recapture systems, for example, those according to the Land Excess-Profits Tax Act, the Ceilings on Ownership of Housing Sites Act and others are stranded by decisions of unconstitutionality or decisions of nonconformity to the constitution of the Constitutional Court. From here, we cannot have a question what are standards or limits that the Betterment Recapture Systems are allowed with constitutional legitimacy in. To find a solution to this problem, betterment recapture systems can be classified as either a direct-betterment recapture system or an indirect-betterment recapture system. Such a distinction is a novel classification in Korea. In this paper, I suggest the standard of constitutional review in betterment recapture systems according to type. Direct-betterment recapture systems require a precise method of measuring betterment to acquire its constitutional legitimacy. Indirect-betterment recapture systems need strict standards of review to acquire its constitutional legitimacy. Those are 'legitimacy of the purpose (especially, a legislative purpose other than the end of betterment recapture)', 'appropriateness of means for a legislative purpose other than the end of betterment recapture', 'least restriction of means for the purpose of indirect-betterment recapture', and ‘balance of legal interests'. These standards of constitutional review are different from general rules against excessive restriction. According to these standards of constitutional review, some provisions might violate the constitution.