공익사업시행자가 실시하는 생활대책의 법적 성격과 사법심사

Abstract

Public work project operators such as LH or SH have been running non-legal based measures called “livelihood measures” to provide displaced persons, those who have lost their bases of business through public work projects, with commercial real estate for re-establishment. There has been much debate over the legal characteristics of such measures. Some say they are only a charity and not public law measures. Others agree that they are part of livelihood compensations but differ as to the constitutional basis of these measures. The Supreme Court of South Korea stated in a 2011 decision that, although there is no legal ground for such measures, if an operator sets plans for and executes livelihood measures according to its own standards, they are deemed ‘just compensation’ prescribed in the art. 23 para. 3 of the Constitution of the Republic of Korea. Critics point out that it is contradictory to include non-legally-based livelihood measures into the category of just compensation while regarding legally based relocation measures as only a policy consideration for displaced persons. A close analysis of the Court decision reveals that the art. 23 of the Constitution was nothing more than a basis for recognizing the ‘right to apply’ requirement for an ‘administrative decision of rejection’: it did not change the way the courts rule on the merits of such cases. The Court does not oblige operators to establish and implement such measures on the basis of art. 23. Nor does it seem that the art. 23 has a specific influence on the way the Court interprets the standards of livelihood measures. In short, the Supreme Court seems to refer to art. 23 only as an ideological goal for the livelihood measures system. Despite using strong expressions, the Supreme Court ruling served only as a means to maintain the status quo in administrative and judicial practices regarding livelihood measures. It is unlikely that the Court wished to trigger any change in the current system.