『사인을 위한 공용침해』再考- 경제개발을 위한 수용의 합헌성에 관한 미국연방대법원 판례를 중심으로 -

While Eminent Domain Power has been traditionally recognised as the authority of such public entities as Government, acts that allow property to be taken for the private entity tend to increase,. “The principle of public necessity” under constitution does not mean that public entities are entitled to exercise of Eminent Domain exclusively. Many opinions over at what circumstances it is permitted to exercise of Eminent Domain for the private have been presented because there is no guarantee of the public nature of taking for the private owner, which are that Eminent Domain is allowed restrictively provided that legal and institutional arrangements to warrant public character of taking exist. These opinions are not persuasive in full degree in that the arrangements as the foregoing didn't ensure that economical and/or societal public benefits such as obvious increment in the level of employment or local and/or sectoral improvement of economic structure would be achieved. Differently, following argument of dissenting opinion at kelo case is very persuasive: “...Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved public benefit it did not matter that the property was turned over to porcate use” If agreed that whether ‘principle of public necessity’ is met or not depends not on what entity of Eminent Domain but on existence and realization of public necessity, taking for the private is coincidental to public necessity so long as the taking directly serve public purpose through achievement of public benefits. In light of this perspective purported ‘direct contribution test’ would be a valid standard in the determination of whether taking for the private satisfy public necessity requirement provided by article 23 of constitution.