문화재 보호와 재산권 보장- 문화재 보호에 관한 독일 법원의 판결을 고찰하며 -

Abstract

Property owners who own cultural properties want to make a profit and use them. In this situation, on the one hand, there is a public interest in the protection and preservation of cultural properties, and on the other hand, a conflict arises between the private interest of the property owner guaranteeing property rights. The property right is a key fundamental right in the Constitution. The guarantee of property rights guarantees the free exercise of property by the subject of basic rights, and enables the creation of property under self-responsibility. According to the constitutional provisions on the suitability of the exercise of property rights for the public welfare, the provision of laws that place the private interest over the public interest violates the provision of the guarantee of property rights under the Constitution. If the restriction of private interests restricted by the implementation of projects that require acceptance for the purpose of public welfare is not proportional, such acceptance measures do not contribute to public welfare. If the restriction of property rights is recognized as possible acceptance of property rights, this is called social binding of property rights, and in this case, there is no obligation to compensate. Exceptionally, if it violates the principle of proportionality or equality among the content and limitations of property rights and constitutes an infringement of property rights, it becomes a provision for the content of property rights obligated to compensate. The German Federation has legislative powers and can enact its own cultural heritage protection laws. According to the German Constitution, the German Federation has exclusive legislative powers for the protection of German cultural property from export. Because the Federation and the states have competing legislative powers, the states have cultural property protection laws. If the cost of preserving and managing cultural properties of the property right owners exceeds the value of profit or use from the cultural property, the property right owners will not be able to accept it. In Germany’s state cultural property protection law, it is judged by the economic acceptability to the person obligated to protect cultural properties. As a legal requirement for the protection of cultural properties, the economic acceptability should be judged from an objective point of view. In calculating the profitability of cultural properties, the income value generated from cultural properties is calculated. Tax benefits may be granted to cultural properties based on the individual property and financial situation of the property owner. In addition, the impossibility of trading cultural properties is also a criterion for determining the possibility of acceptance. In the constitutional system of Korea, exceptionally, if it violates the principle of proportionality or equality among the content and limitations of property rights and constitutes an infringement of property rights, it is a provision for the content of property rights obligated to compensate. In this case, the economic acceptability can be used as a criterion for judgment.