지방하천편입 토지에 대한 매수청구제도 도입 방안

Abstract

Water and the rivers through which it flows are closely related to human life. Land located right next to or adjacent to a river may be incorporated into the river bed due to the “envelopment” phenomenon. When land is incorporated into a river site, the land cannot be used in the same way as the existing method of use and profit, and this can happen to both national and local rivers. However, while the 「River Act」 recognizes the ‘Requests for Purchase of Land’ for national rivers as a way to compensate for the losses of owners who have experienced the above phenomenon, it does not explicitly recognize the purchase claim system for local rivers. There was an argument that a ‘Requests for Purchase of Land’ should be introduced for local rivers, but it was not accepted due to reasons such as insufficient finances of local governments. ​If the owner is unable to use and profit from the land in the existing way due to the incorporation of river land, a problem of property rights infringement arises. However, owners cannot receive full compensation for losses through loss compensation claims under the 「River Act」, administrative lawsuits, state compensation claims, civil lawsuits, or constitutional lawsuits. Ultimately, the most effective way to compensate for losses resulting from the owner's inability to exercise complete ownership is to exercise the ‘Requests for Purchase of Land’ under the 「River Act」. Even if a ‘Requests for Purchase of Land’ is introduced for local rivers, it is not recognized indefinitely. As with the ‘Requests for Purchase of Land’ for national rivers, there will be restrictions such as “land whose utility has been significantly reduced because it cannot continue to be used for its original purpose” and “land whose use and profit have become virtually impossible.” Therefore, legislative improvements to Article 79, Paragraph 1 of the 「River Act」 are necessary to compensate for the losses of owners whose land ownership rights are infringed.