美國과 韓國에서의 公共施設負擔制度에 關한 比較法的 硏究 = (A) Comparative Study on the Legal Systems Relating to Public Facilities Cost Bearing in the United States of America and the Republic of Korea

다국어 초록 (Multilingual Abstract)

(1)The demand for public facilities is increasing at a fast pace due to the rapid industrialization and urbanization in the outskirts of metropolitan areas as well as in rural areas of Korea. However, the supply of public facilities has not kept up with the pace of demand and Korea faces shortage of public facilities. Under these circumstances, the main issue is how to secure the funds for constructing, maintaining, and managing these necessary public facilities. Nowadays municipal authorities are experiencing difficulties in funding the necessary public facilities due to the limited financial capacity, and how to develop alternatives to fund new public facilities without burdening their cost to residents who have already paid for costs of the existing public facilities in the area is emerging as the important issue.
(2)In the United States of America, many municipalities have adopted various kinds of policies to fund the new public facilities generated by new comers to the area, and land dedication, fees in lieu of land, and development impact fees are among them.
(3)With respect to the legality and constitutionality of bearing cost for public facilities by residents, there have been two issues: one over the illegality and constitutionality of these measures due to the absence of legal foundation within the state Statutes and Constitution, and the other over irrational regulations or disguised taxes beyond the police power. To counter these claims, a number of states have enacted legislation to provide the legal bases for land dedication and development impact fees, and recent judicial decisions consider bearing cost for public facilities by residents as authentic land use control that falls under the police power.
Three major tools such as land dedication, fees in lieu of land, and development impact fees have been used to support the public facilities caused by development in most states in the United States of America, and the measure of development impact fees is increasingly being adopted. The courts in the United States of America judge that the dual rational nexus requirements be satisfied to justify the cost bearing of public facilities by residents.
(4)In the case of Korea, the public facilities that should be created concurrent with development are constructed based on the various kinds of development-related laws concerning individual facilities and individual development projects. However, reciprocal relations between related laws are not systematic, and the laws themselves do not provide sufficient provisions concerning needed public facilities, standards, and bearing costs for them. In addition, although some measures are stipulated in the laws able to be adopted to fund the needed public facilities, voluntary dedications are mainly used, and these are not as diverse as various methods in the United States of America. Furthermore, Korea faces the problem of not bearing cost for enough public facilities in case of developments generated in small-scale and taking place at different periods.
Also even the method of voluntary dedication, the most widely used measure at present, entails problems of misuse such as bearing for unrelated projects, illegal bearing, and double bearing, etc.
(5)Compared to the American system, Korea needs to adopt mandatory cost bearing system for public facilities to effectively prevent disordered development generated especially by small-scale development projects. Furthermore, there is a strong need to enhance the link between installation of public facilities and land use plan. The principle of not allowing any development projects without guaranteeing of adequate public facilities should be firmly established. The method of calculating cost bearing of public facilities should also be improved to be more objective and rational as in the United States of America.
(6)With the recent disordered development emerging as a serious social issue, Korea is currently drafting the so-called "Act on National Territory Use and Urban Planning," with focus on adopting bearing system for public facilities. The Act includes the following: principle of bearing public facilities, permission of development conditional bearing public facilities, designation of bearing public facilities zones, establishment of bearing public facility plan, bearing public facilities and construction thereof, and introduction of special district-level planning system.
(7)However, "Act on National Territory Use and Urban Planning" is judged to have the following problems: there are no specific provisions of law concerning the methods of total bearing cost amount and the assessment mechanism, there are no provisions of law related to defrayment period and restitution in case of defrayment failures, and there are no provision of law ensuring transparent operation and management of public facility cost bearing funds and supervision thereof. In particular, the lack of a unified provision concerning rearrangement and coordination of various existing cost bearing systems for public facilities can be pointed out as a critical problem.
(8)Considering these problems, there is a need to legislate a new Act stipulating more general and comprehensive cost bearing system for public facilities with long-term and pro-active view like the one in the United States of America mentioned above. The new Act should provide the legal foundation for voluntary dedication and contain unified regulations which rearrange and coordinate various cost bearing system for public facilities. In addition, the Act should mention specific standards regarding the types, amount and level, bearing methods, and the time schedules, etc. of cost bearing system for public facilities which are generated by and are to be constructed by private developers.
(9)Furthermore, the new Act should include various types of bearing system for public facilities which are in effect in many states in the United States of America, and introduce the accumulative system and joint bearing system for public facilities in order to prevent disordered development occurring at intervals in small-scale development types. On the other hand, the new Act should stipulate time limit within which the amassed public facility cost bearing funds are to be spent as well as reimbursement in case needed public facilities are not constructed within a certain given period. Also, it would be desirable to set up a special fund or a special account independent from the general account so as to ensure convenient accounting of collected public facility cost bearing funds.
(10)This study intended to review overall cost bearing system for public facilities, and is incomplete in some aspects. For example, the study on how to develop a rational standard for calculating cost bearing to be borne by each individual public facility needs to be supplemented in a follow-up study in the future.

목차 (Table of Contents)

• 第1章 序論
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍및 方法 = 4
• 第2章 美國의 公共施設負擔制度
• 第1節 槪說 = 6
• 第2節 分筆規制制度와 公共施設負擔 = 7
• I. 分筆規制制度의 意義 = 8
• 1. 分筆및 分筆規制의 意義 = 8
• 2. 分筆規制制度의 沿革 = 10
• II. 分筆承認의 過程 = 15
• III. 分筆規制의 履行確保手段 = 17
• IV. 分筆規制와 公共施設負擔 = 19
• 第3節 土地利用計劃과 公共施設負擔 = 19
• I. 土地利用計劃과 分筆規制-公共施設負擔 = 19
• II. 地域地區制와 分筆規制-公共施設負擔 = 21
• 第4節 成長管理政策과 公共施設負擔 = 22
• I. 成長管理의 槪念과 手段 = 22
• 1. 成長管理의 槪念 = 23
• 2. 成長管理의 手段 = 24
• II. 成長管理手段의 根據 = 27
• 1. 地方自治團體의 權限 = 27
• 2. 地方自治團體의 權限에 대한 制限 = 29
• 第5節 公共施設負擔制度의 主要內容 = 30
• I. 事業者의 公共施設 負擔方式 = 30
• 1. 土地의 寄附採納 = 30
• 2. 寄附採納에 갈음하는 負擔金 = 33
• 3. 開發影響負擔金 = 34
• II. 事業者가 負擔하는 公共施設의 種類 = 37
• 1. 傳統的인 施設 = 37
• 2. 새로운 社會施設 = 37
• III. 公共施設負擔의 法的問題 = 40
• 1. 公共施設負擔의 法的根據 = 41
• 2. 公共施設負擔의 理論的根據 = 48
• 3. 合憲性·合法性의 判斷에 관한 判例 = 51
• 第3章 우리나라의 公共施設負擔制度
• 第1節 槪說 = 67
• 第2節 都市開發事業과 관련한 主要 問題 = 68
• I. 公共施設의 不足이 문제되는 都市開發事業 = 68
• II. 實態分析 = 70
• 1. 분당지역 = 71
• 2. 일산지역 = 72
• 3. 所見 = 73
• 第3節 法令上의 公共施設負擔制度 = 74
• I. 公共施設의 定義와 種類 = 74
• II. 個別法上 公共施設負擔制度 = 77
• 1. 住宅建設促進法上의 幹線施設 = 77
• 2. 宅地開發促進法上의 幹線施設 = 81
• 3. 都市計劃法上의 公共施設 = 83
• 4. 都市開發法上의 公共施設 = 84
• 5. 都市再開發法上의 公共施設 = 85
• 6. 主要公共施設의 供給制度 = 86
• III. 公共施設設置關聯負擔金制度 = 92
• 1. 負擔金의 意義-種類 = 92
• 2. 負擔金制度의 現況 = 94
• 3. 公共施設設置關聯 負擔金 = 95
• IV. 公共施設負擔의 類型別 分類 = 101
• 第4節 附款에 의한 公共施設負擔制度 = 102
• I. 附款에 의한 公共施設負擔의 根據 = 102
• II. 附款에 의한 公共施設負擔의 限界 = 104
• 1. 不當結付禁止의 原則 = 105
• 2. 比例의 原則 = 110
• III. 寄附採納의 實態 = 113
• 1. 寄附採納의 類型程度 = 113
• 2. 國民苦衷處理委員會의 勸告事例 = 116
• 第4章 現行公共施設負擔制度의 問題點과 改善方案
• 第1節 現行公共施設負擔制度의 問題點 = 131
• I. 槪說 = 131
• II. 法的 規律의 不備 = 131
• III. 分割建設의 問題 = 133
• IV. 負擔方式의 限定(彈力性의 不足) = 135
• 第2節 現行公共施設負擔制度의 改善方案 = 136
• I. 美國 公共施設負擔制度의 示唆點 = 136
• II. 國土利用및都市計劃에관한法律(案)上의 改善方案 = 137
• 1. 基盤施設負擔制 = 138
• 2. 國土利用의 先計劃 後開發體系 確立 = 143
• 3. 開發許可制 = 148
• 4. 法律案의 評價 = 149
• III. 公共施設負擔法의 制定 = 150
• 1. 公共施設負擔金制의 導入 = 150
• 2. 公共施設負擔金의 算定基準및 方式 = 159
• 3. 開發負擔金등과의 重複問題 = 167
• 4. 公共施設負擔法의 制定 = 168
• 第5章 結論 = 172
• 參考文獻 = 175
• ABSTRACT = 187