國家의 文化遺産保護義務와 古都의 保存

Abstract

There is not a systematic law to protect historical cultural old cities in Korea. This article aims at designing the legal system of “Old City” preservation and suggesting legislative frame. First, I analysed the concept of cultural right and government's obligation in protecting cultural heritage. In discussion about the concept of cultural right, there are many ideas from the aspect of international human right than that of constitutional right. Wheres many different opinions were suggested around the concept of cultural right, it has been still ambiguous and not clear what the cultural right means. In this article, I sketched various academic opinions about the cultural right and tried to get the government's obligation to protect cultural heritage from the article 9 of Korean Constitution. The article imposes the government to protect the cultural heritage. In Japanese, the first law to preserve historical old cities was made in 1966. In designing the legal preservation of old cities, Japanese legal system and its development looks much helpful for us. I introduced Japanese legal system of “Old City” preservation and suggested my ideas. I suggested that the current Korean cultural property protection law is not sufficient to preserve the historical old cities and special legislation is necessary. In making the policy of old cities protection, it is necessary to approach the protection of old cities as a “face” not a “point.” To preserve a city as the old city, the government should determine a certain historical city as a preservation area. In case that a combination of historical area and natural scenery creates undivided cultural value, it is necessary to determine the whole areas as the object of preservation. This is the idea of “protection as a face.” Under the idea of “protection as a face,” I designed the old city preservation frame. I analysed the legal obligations of government and citizens in preservation of old cities. I explained how to determine the objects of preservation, who should pay the preservation cost, what is the each role of central government and local government, how to establish a preservation planning, expropriation and compensation, the administrative order to stop construction and constructor or estate owner's appeal process, how to enjoy the preserved old cities as cultural heritage. This article was written from the aspect of constitutional policy.