사인에 의한 공간조성권

Abstract

“Public necessity” provided in Constitution §23 ③ as a Legal requirement for Expropriation against property right shall be interpreted and applied more strictly than “Public welfare” provided in Constitution §37 ② as a general restricting provision of citizen’s right. The later includes the former, but the contrary is not true. To discuss the above in detail, “Public necessity” means to serve the public use exceeding the social restrict inside the property right from beginning to end of the planned development program. In other words, anyone, whether he is pubilc or private entity, can be chosen to menage the planned development project and given an authority to expropriate the property right including lands by the public power as far as the project serves public welfare. And the words “the project serve public welfare” means that it serves and will serve the public use after having done the development,otherwise there is no demand for public use when the public power decide the plan or the developing result does not supply for the public use. To make it conclude as follows:First, Our Constitution §23 ③ allows not only the public power but also the private to be chosen to menage the planned development project with an authority to expropriate. Second, “Public necessity” as the key requirement for Expropriation is composed the public and the necessity. The former implies ‘public use’, ‘use for public’, ‘use by public’ or ‘serve the welfare’. The later involves ‘proportional principle’, ‘the minimum scope of expropriation’ and additionally ‘the consistency principle of publicity’. Finally, a profit-making corporation without having any authority over the property supposed to expropriate can be also an agent of expropriation so far as to meet the public necessity throughout the whole expropriation business, even though the corporation exercise the above power to attain his own goal.