재산권 보장과 잔여지 보상

다국어 초록 (Multilingual Abstract)

This study delves into the intricate debate surrounding the structural interpretation of Article 23 of the Korean Constitution, specifically focusing on property rights and compensations for the remaining land. The discourse has been a formidable challenge in Korea, compounded by the ongoing contention between the separation theory (Trennungstheorie) and the boundary theory (Schwellentheorie) since the gravel collection judgment (Naßauskiesungsbeschluß). The crux of the issue lies in the compelled assimilation of German theories, stemming from the perceived resemblance between Article 23 of the Korean Constitution and Article 14 of the German Basic Law(Grundgesetz).
Moreover, ambiguity persists regarding the interpretation of just compensation in Article 23(3) of the Constitution and whether the legislature can opt for full or reasonable compensation as just compensation. While the clause is generally construed as requiring full compensation, this interpretation is confined to cases of land expropriation, leaving room for varied interpretations contingent on individual circumstances. Unilateral application of full compensation for the remaining land is problematic, necessitating case-specific scrutiny.
The existing regulations on compensation for the remaining land are designed favorably for project implementers. Consequently, there is a need to delineate the relationship between Article 23 of the Constitution concerning property rights and compensation for the remaining land. Based on this clarification, the study proposes measures for revision.
This research, informed by decisions from the Constitutional Court, categorizes the property rights provision into: ① Contents and limitations provisions of property rights without compensation (no compensation), ② Contents and limitations provisions of property rights with compensation (adjusted compensation), and ③ Loss compensation for expropriation (just compensation). Additionally, the study separately reviews compensation for the acquisition of the remaining land, compensation for losses of remaining land, and compensation for construction costs.
In conclusion, the compensation for the acquisition of the remaining land is a restriction on the contents and limitations provisions of property rights with compensation(adjusted compensation) under Article 23(1) of the Constitution, and corresponds to adjusted compensation akin to full compensation. The Compensation for Losses of Remaining Land is also categorized under the contents and limitations provisions of property rights with compensation(adjusted compensation) and compensation should be provided from the perspective of adjusted compensation.