미국의 규제수용법리의 내용과 환경보호와의 관계 = Doctrine of Regulatory Takings

다국어 초록 (Multilingual Abstract)

The United States Constitution protects property rights by prohibiting the taking of private property for public use by the federal and state governments without the payment of just compensation. According to the United States Supreme Court, the Takings Clause of the Fifth Amendment is intended "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." As the Court has noted, a "strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
Historically, the Takings Clause applied only to physical expropriations of property. It was not until its decision in Pennsylvania Coal Co. v. Mahon in 1922 that the US. Supreme Court recognized the possibility of a "regulatory" taking, that a regulation that has substantially the same effect as a physical taking in terms of interference with a property owner's rights is itself a compensable exercise of the eminent domain power, The Mahon Court stated that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Since this cryptic pronouncement was made, the courts and scholars, predictably, have been engaged in the frustrating and largely fruitless exercise of determining where that line of "too far" should be drawn in any particular instance.
Takings law is commonly viewed as existing along a continuum. One end of the continuum is anchored by the traditional form of eminent domain: a physical confiscation of property, no matter how trivial, subject to the non-controversial, straightforward rules requiring payment of just compensation. The other end of the continuum is moored by a valid police power action. Under traditional Supreme Court takings doctrine, once a regulation crosses some invisible line such that it has substantially the same impact on the property owner as a physical confiscation, it ceases to be a valid police power action and becomes instead a "regulatory taking."
Although the Supreme Court has never been able to articulate precisely where the dividing line between valid police power actions and regulatory takings lies, it is clear that the Court is willing to tolerate extensive interference with property interests before a regulatory taking will be found.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 재산권 제한의 근거로써 전통적 규제수용이론
• Ⅲ. 현대적 규제수용이론
• Ⅳ. 규제수용법리와 환경보호와의 관계
• Ⅴ. 결론