토지공용제한과 손실보상

Abstract

In the Democratic and Capitalistic Society, the Right of Property is supposed to be protective, but it could be limited through the lawful contents and process under the purpose of Public Welfare. For the purpose like this, under our unique historical background and experiences, the restriction of land utilization has formed and improved in the flow of "First is Public Welfare, Second Private Right of Property". Also as Korean restriction of land utilization has had the character of Public Law depended on the strong government-centered power, when the interpretation of "Public Welfare", that is the core in the restriction of land utilization, is needed, national needs have been considered as Public Welfare. If we consider only Article 23, the Constitution, unlike in Germany and United States, Korean Constitution seems to guarantee the Right of Property even wider because it is stipulated that the infringement's range, that must be compensated, about the Right of Property includes the use or the restriction as well as the general expropriation. In fact, however, the Restriction, although there is no concrete compensation provision, is enforced because it is just thought as the reasonable obligation like in the Restriction of land utilization by Act of the Planning and Utilization of the National Territory. Recently, the Constitutional court has decided that, if the Restriction on the Right of Property exceeds the simple social restriction, the expropriation effect must be admitted. This is a big step in point of the balance and the harmony between the Protection of Private Right of Property and Public Welfare. There are still many things to be done. In this paper, I will suggest some alternative plans on the balance between the Right of Property on Constitution and the Restriction of Land Utilization for Public Welfare.