주택재개발사업과 주택재건축사업의 법적쟁점 비교 고찰

Abstract

Prior to the enactment of the 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents」, the housing redevelopment and the housing reconstruction have been treated in a different legal area, in spite of their similar functions in reality. One in the public law and the other in the private law. Such separation has been creating a lot of difficulties in solving legal matters. The current 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents」 are applied to both and as a result of it, such difficulties are addressed partially. However, there still some ambiguity exists under this new law. The element of public interest in the housing reconstruction has been emphasized. Also the housing reconstruction which has been considered as the private law plays some role in city rebuilding and the housing reconstruction issue has been dragged into public law area. Likewise, such phenomenon causes inevitable conflicts between private individual right and public interest. Current redevelopment and reconstruction projects have been made mainly for the old and deteriorated houses. Subsequently, residents have inevitably been confronted with the housing safety problem. They oppose the projects itself or disagree with the terms and conditions of contract proposed by the contractor trying to purchase their property and seeking residents’consents. Since 「Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents」 has been enforced from July 1st 2003, the process of redevelopment and reconstruction are under the same procedure. Still, the way to acquire the land from owners who don’t consent to contract or is different case by case. Housing redevelopment adopts expropriation method. On the other hand, housing reconstruction takes the system of sale request. Yet, being different from public expropriation system, 「Act on Acquisition and Compensation of Land for Public Service」 is not applied to sale request system and there is no public office to take charge of its procedure. For these reasons, in sale request system, litigations are more frequent than arbitration to resolve the problem in regards to requirement, procedure and sales price. Though the right of selling claims by the housing construction is belong to the private law, its exercise procedure is very similar to the expropriation claims under the public law. Therefore, as long as housing construction is admitted to public utilities, it must be done smoothly by giving the expropriation claims to the private businessmen according to changing the current system. But after private businessmen have bought more than 70∼80% of the necessary housing land, the expropriation claims might be given to them only to acquire the rest land.