FTA시대의 토지문제와 대응과제 ― 간접수용과 투자자국가소송에 대비하여 ―

Abstract

This paper was launched in the wake of the indirect expropriation stated in the FTA between South Korea and the United States, April 2007, which could have critical influence upon land regulations in Korea. Indirect expropriation, like direct expropriation, refers to cases where regulatory actions taken by the government of an investment-drawing country interfere investors’ returns on investments. Should the forementioned government violate their compensation obligations on indirect expropriation, the investors can claim for reparations through ISD (Investor-State Dispute Settlement). Therefore, the Korean government will be bound to seriously reconsider the existence of land regulations, which lead American investors to claim for a considerable amount of reparations for the indirect expropriation regarding Korea’s land regulations. Meanwhile, the Korea-U.S. FTA suggests three criteria for deciding indirect expropriation cases: the economic impact of the government action, the extent to which the government action interferes with investment-backed expectations, and the character of the government action. These three factors were also incorporated into the rules for judging regulatory taking cases that the U.S. Supreme Court put forth in the Penn Central case in 1978, and the indirect expropriation in the KORUS FTA is theoretically based upon the theory of judicial precedents of the U.S. Supreme Court, namely, regulatory taking. The KORUS FTA requires the globalization of legal standards, as well as economic opening up, which tears down the trade walls and prompts free trades among nations, through indirect expropriation based upon the regulatory takings doctrine. This paper aims to grasp the actual conditions & their problems of Korean land regulations on the basis of regulatory takings' judicial precedents & investment dispute settlement cases, and to suggest the improving way of major land regulations preparing for the Investor-State Dispute(ISD) in KORUS FTA. This paper focuses on the analysis of investment disputes settlement cases as well as regulatory takings' judicial precedents as the theoretical backgrounds of indirect expropriation. In each analysis, it brings up the logical frame for reviewing the disputability of land regulations, paying attention to the relevancy to land regulations so as to derive the judgement criteria of whether they are regulatory takings or not. The diagnosis results of land regulations in Korea shows that there are the two choices to cope with changing international conditions. One is building a system for preventing violations of property rights due to oppressive regulations and the other is preparing legal rules for just compensation. For example, this paper suggests to improve the regulation impact assessment system of taking advantage of the standards for regulatory taking. In additional, it calls on lawmakers’ efforts for legal compensation for the infringement upon property right in the long view. Above all, it suggests solutions to improve the systems for the claims to purchase property infringed. A global society recently requires to open trade markets and improve legal systems to be consistent with global standards. To reach a fuller understanding of the problem, it is necessary to take steps such as improvement of legal system for adjusting public and private interests, looking back upon the land regulations concentrated for the public.