재건축초과이익 환수제도의 법적 검토

Abstract

The restitution of exceed gains from reconstruction was introduced to prevent the privatization of exceed gains or unearned income and ultimately to stabilize housing prices. However, there would be room for unconstitutionality when we consider restriction of property rights, difficulties of a fair and accurate measurement of property liable for taxation, lack of appropriate regulations in case of land price declines, double taxation, retroactive legislation, violation of the principle of equality, violation of the principle of excessive prohibition. This system was created in the era of real estate boom and there was no social consensus during the process of creating the system. This system, compared to another restitution system of development gains, restricts property rights quite excessively. Moreover, there were not enough legislative considerations of subjects who have property rights and freedom of the reconstruction. Considering shrinking real estate market of nowadays and the restitution of exceed gains from the reconstruction of apartments, we can see that the reconstruction of apartments is getting more and more difficult. However in the future the reconstruction of apartments should not have to be suppressed, but rather to be supported, especially considering that apartments in the 1st New City and other neighboring area are presently more than 20 years old and their building coverage and floor area ratio are very high. So we will have to consider introducing policies to encourage the reconstruction of apartments. Through the analysis of the status and problems of restitution development gains including the restitution of exceed gains from the reconstruction of apartments, we will be able to discuss ways to improve the system. First, we must formulate national consensus that land or housing benefit or unearned income generated from any developments or redevelopments should be restituted, complying with the principle of social state and the public concept of land. Second, we need to restitute exceed gains originated from all development projects without exception and modify our legal system necessary for restitution of exceed gains from all development projects not only for the development areas but also for the neighborhood of the development areas.