The right of property was thought to be sacred and inviolable as an innate right, at the beginning of modern ages. So it was recognized as an absolute right. Modern constitutional law had set in core provisions on the complete guarantee of property ri...
The right of property was thought to be sacred and inviolable as an innate right, at the beginning of modern ages. So it was recognized as an absolute right. Modern constitutional law had set in core provisions on the complete guarantee of property right as well as liberty right. However provisions right of ci-tizens, especially on the right of land ownership, has changed over time in in-cent ages. In fact, land which is a basic resource in a country lays the found-ations lives of the people of the country. Hence, while Constitution Of The Republic of Korea guarantees all citizens the property right, it permits to restrict their private property for public necessities.
Constitution Of The Republic of Korea Article 23 (1) provides that the right of property of all citizens shall be guaranteed, the contents and limitations thereof shall be determined by Act. (2) provides that the exercises of property rights shall conform to the public welfare. (3) provides that expropriation, use or re-striction of private property from public necessity and compensation therefor shall be governed by law: Provided, that in such a case, just compensation sh-all be paid. Like this, the constitutional guarantee of property rights determin-ed under the conditions as prescribed by Act. but the legislation of property- rights is not unlimited. In determining the contents of property right, legislature should be in conformity with the principles of proportionality review, confidence protection, inviolability to essential sphere the right and equal protection caluse.
The principle of guarantee of property rights is existence guarantee, value gu-arantee is permitted exceptionally. Accordingly the purpose of property guara-ntee doesn′t lie in the compensation for the loss of proprietary value but in the existence to itself as a protection right. In this point the cotents-clause of property right without compensation provision would be unconstituitonal on the grounds of excessive of property right, shall not be converted into invasion f-or public necessity.
In making of the study of property rights theory, the property right theory of Germany and U. S furnish with useful information. Because The constitutional court draw a distinction between the contents of property right without comp-ensation and the invasion for public necessity in a standpoint of the seperati-on theory by reason that it accords with the rule of constitutional existence guarantee of property right, originated from the freedom-guaranting function of property right. The property rights as a material presupposition of freedom regard 'private u-tility' and 'disposition' as an essential sphere. moreover the right of property has such meaning as a fundamental right and as a private property system. hence, the 'public concept policy of real estate of participation government get accomplished within the constitutional scope of guarantee of property rights
The constitutional court decisions about public concept policy of real estate consider as 'the constitutional limitation' of public concept policy. therefor, In the compliance of constitutional limitation' of public concept policy, government must promote a estate policy for the essential settlement of speculation in re-al estate. Besides, the essential factor of speculation in real estate can regard as the concentration of capital region. In this point, national balanced land development policy should be executed as the essential factor of speculation in real estate,