재건축 부담금의 헌법적 검토

Abstract

As the provision of imposition of reconstruction charges that has been deferred will be re-executed, the reconstruction charge will be imposed on reconstruction projects that apply for the approval of a management disposition plan after January 1, 2018. As to the government’s analysis that the reconstruction charge will be KRW 800 million, some reconstruction complexes are preparing for filing an unconstitutional lawsuit. In connection with determining whether the imposition of reconstruction charge is unconstitutional, ‘taxation on unrealized profits’, ‘double taxation’, ‘violation of the principle of excessive prohibition of restriction on property right’, and ‘violation of the principle of equality’ are raised as problems. Regarding the taxation on unrealized profits, the Constitutional Court suggested that the relevant procedures should be established in order to meet the tax principles, such as actual taxation or fair taxation, through the procedures of fair and accurate measurement, stating that it is a matter of legislative policy but it does not seem to be contradictory to or incompatible with the concept of taxation in the Constitution’. The Ministry of Land, Infrastructure and Transport said that it reflected the aforementioned opinions of the Constitutional Court in advance from the time of making the Act on Restitution of Excess Rebuilding and prevented a possibility of unconstitutionality by establishing a concrete and objective method of calculating the charge in the law. However, union members of reconstruction complex argue that the system of restitution of excessive profit infringes an individual’s property right because a union member of reconstruction complex who only owns a single apartment for reconstruction is forced to sell his/her apartment if he/she has no capacity to pay the charge. Under the sharp conflict of interests between the government and reconstruction union members, the controversy surrounding the legal and academic circles has also been intensified in connection with the imposition of reconstruction charges. Cheongwadae is planning to more clarify the public concept of land ownership, announcing the constitutional amendment proposal of the President. Apart from the revision of the Constitution in the future, there is a possibility of further debate on the public concept of land ownership. In connection with the imposition of reconstruction charge, it is necessary to review the public concept of land ownership and the legal principles under the Constitution. This paper reviews various issues related to the unconstitutionality of imposing reconstruction charges and examines reconstruction charges from a perspective of the public concept of land ownership.