영농손실보상의 법적 문제

Abstract

The main issues in the target case are the legal nature and criteria for determining agricultural loss compensation, the basis for calculating agricultural loss compensation, and the form of litigation for agricultural loss compensation. The Supreme Court of Korea considers agricultural loss compensation indirect and livelihood compensation. However, it is difficult to understand that the loss of agriculture loss referred to in Article 77 of the Korean Land Compensation Act is a livelihood compensation. The loss of crops due to land expropriation constitutes loss compensation other than land compensation, which is compensation for property rights. Compensation for the farming loss due to expropriation is at issue in the subject judgment. This is a matter of livelihood compensation. However, it is not appropriate to view this as indirect compensation. Indirect loss compensation is compensation for losses that occur outside the project area. In this case, the agricultural losses on the land do not qualify as “indirect loss compensation” because they are included in the utility district. While distinguishing compensation for agricultural losses from just compensation, i.e., full compensation, under Article 23(3) of the Korean Constitution, the Target Judgment uses the standard of “special sacrifice (Sonderopfer)” for compensation for agricultural losses. The appropriateness of applying this German-derived standard of “special sacrifice” to livelihood compensation needs to be reconsidered. Livelihood compensation is based on Article 34 of the Korean Constitution, and the requirements and scope of such compensation must be prescribed by law. While the subject judgment uses the standard of “special sacrifice,” it is unclear which of the theories of extraordinary sacrifice it follows. While the Supreme Court of Korea determines what constitutes “special sacrifice” as a basis for compensation on a case-by-case basis, taking into account the different circumstances of each individual case, it is necessary to establish an objective and uniform standard if this standard is to be used as such. Germany has recently established a formalized concept of expropriation and clarified the requirements for public expropriation. Even if the Ministry of Land, Infrastructure, and Transport (MOLIT) has interpreted the “Criteria for Recognizing Actual Income from Crops” as an example, it is beyond the scope of legal interpretation to include cases that are not recognized by the Criteria the context of the provision. The subject case is unclear on the form of the lawsuit for agricultural losses. However, unlike previous precedents, it does not require an adjudication by the Land Use Committee. The subject judgment is an important precedent for the compensation of agricultural losses in the future. However, I hope the unclear or ambiguous parts mentioned above will be fully supplemented through various discussions in the academic community.