토지 재산권의 제한에 관한 고찰 - 헌법재판소의 결정을 중심으로 -

Abstract

The Article 23 of the Constitution of the Republic of Korea guarantees property rights. But the constitution suspends the judgments on the specific contents & the relevant limitations and the public expropriations and the relevant compensations by letting them be decided in accordance with laws in order for the specific contents of property rights to be created by the legislative body. However, in the modern society, guaranteeing property rights are not the absolute matter for the people any longer due to the appearance of the principle of social binding but property rights are created as relative things. And such property rights became the objects that can be restricted for some public needs or public welfare. Especially, land has been strictly controlled by the principle of social binding of property rights due to the finitude, scarcity and publicness, etc., of land. And the public concept of land ownership appeared as a principle for a strong restriction on land property rights. According to the concept above, since a much more strengthened social duty is emphasized regarding to a land property right unlike the other kinds of property rights while being considered the social functions and importance of land, it fits with the spirit of the constitution to allow land property rights to be used or developed for the social benefits not as the exclusive properties of some classes of people. The Korean government has enacted various kinds of laws for regulating the uses of land based on the public concept of land ownership. However, it is in the situation that many disputes related to the legitimacy and constitutionality are consistently generated accordingly. And it can be considered that such disputes are the inevitable conflicts between the constitutional concept guaranteeing the people's property rights and the land property rights-related laws that are materialized based on the pubic concept of land ownership. In case that such a dispute occurs, an appraisal on whether the contents of a property right which is materialized in a way of legislation fit with the spirit of the constitution or not shall be ultimately controlled by the Constitutional Court. In this paper, it is intended to review how the principle of social binding for the land property rights has been applied to the Constitutional Court by examining the theories on the guaranteeing of and restrictions on land property rights based on the theory on guaranteeing property rights and by reviewing the decisions the Constitutional Court that have been made regarding to the restrictions on land property rights until now.