미국 규제적 수용에 대한 판단기준
Analysis of the criteria for regulatory taking under the U.S Supreme Court
0
조회
0
다운로드
5
인용
0
참고문헌
키워드
초록
Abstract
In the present paper we shall see what regulatory taking is and how it works. Takings is an evolving area of constitutional jurisprudence that does not present precise standards or clear analytical approaches. Today it operates not only as a defense against government confiscation of property, but also as a check on the use of police power to regulate the use and enjoyment of property. Back in the Pennsylvania case, 1922, Supreme Court Justice Homes, for the first time in history, acknowledged ‘regulatory taking,’ in his remark, “if regulation goes too far it will be recognized as a taking.” For the past 80 years, the U.S. Supreme Court has been forming the theory of judicial precedents, regulatory taking, at the crossroads of the public and private interests in a number of cases. Thus, regulatory taking is based upon constitutional grounds for protecting property rights from being infringed by state regulations. However, the regulatory takings doctrine has developed disorderly developed, as Justice Stevens point out that even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence in the Nollan case, 1987. This paper does an analysis of the criteria for regulatory taking from 1922 to 2005 provide that the Supreme Court has employed a categorical review and Ad hoc review. The former considers whether the action falls within some category for which compensation is always required no matter how minute the intrusion, and no matter how weighty the public purpose behind it in deciding whether challenged government action constitutes a taking. In engaging in the latter, ad hoc and factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. At the very least, it is to be hoped that this paper is able to provide an impetus for studying the regulatory taking.
참고문헌 (19)
- Bender Leslie, "The Takings Clause : Principle or Politics ?", Buffalo Law Review, 34, pp.764~ (1985)
- George Skouras, "Takings Law and the Supreme Court", pp.23~ (2000), Peter Land Publishing, Inc.
- 박승기, "환경규제와 토지재산권 보장에 관한 연구 - 미국판례를 중심으로", 박사
- James S. Burling, "A Short History of Regulatory Takings - Where We Have Been and What Are The Hot Issue of Today,SM040 ALI-ABA 13 Course of Study : Inverse Condemnation and Related Government Liability", pp.39~ (2007), Pacific Legal Foundation
- Andrea L. Peterson, "The Taking Clause : In Search of Underlying Principles Part I - A Critique of Current Takings Clause Doctrine", Cal. L. Rev, 77, pp.1328~1330 (1989)
- Darren B. Samson, "You Say Takings, And I Say Takings : The History and Potential of Regulatory Takings Challenges to The Endangered Species Act", Duke Environmental Law and Policy Forum, 16, pp.311~ (2006)
- 박윤흔, "미국에 있어서의 토지이용규제와 손실보상", 미국헌법연구, 2, pp.45~ (1991)
- 金珉昊, "美國의 規制的 收用에 있어 公益과 私益의 調整", 토지공법연구, 16(1), pp.3~92 (2002), 한국토지공법학회
- 鄭夏明, "임시적 수용", 토지공법연구, 18, pp.24~552 (2003), 한국토지공법학회
- 김동건, "미국의 Regulatory Takings의 연구", 토지공법연구, 19, pp.11~302 (2003), 한국토지공법학회
- J. Beucher, "Land Use : Case and Materials", pp.38~ (1975), West
- Robert Meltz, "The Takings Issue", 185~ (1999)
- 정하명, "미국에서의 보상을 요하지 않는 토지규제론", 공법연구, 32(3), pp.387~404 (2004), 한국공법학회
- J. David Breemer, "Overcoming Williamson County’s Troubling State Procedures Rule: How the England Reservation, Issue Preclusion Exceptions, and the Inadequacy Exception Open the Federal Courthouse Door to Ripe Takings Claims", J. Land Use & Envtl. L., 18, pp.260~263 (2003)
- Michael M. Berger, "Shell Game! You Can’t Get There from Here: Supreme Court Ripeness Jurisprudence in Takings Cases at Long Last Reaches the Self-Parody Stage", Urb. Law, 26, pp.67~ (2004)
- Madeline J. Meacham, "The Williamson Trap", Urb. Law, 32, pp.239~ (2000)
- George A. Yuhas, "The Ever-Shrinking Scope of Federal Court Takings Litigation", Urb. Law, 32, pp.465~ (2000)
- Mark Fenster, "The Takings Clause, Version 2005 : The Legal Process of Constitutional Property Rights", U. Pa. J. Const. L., 683~ (2007)
- Stewart E. Sterk, "The Demise of Federal Takings Litigation", Wm. & Mary L. Rev, 48, pp.282~283 (2006)