도시정비법상 정비기반시설의 법적 쟁점

The property right of the new urban facilities provided by the public or private project implementer as a part of urban rearrangement projects should be transferred to the central government or the local government without consideration, according to the “Urban Rearrangement Act”. Our supreme court holds that the passage of the title of this kind occurs on the basis of the applicable provisions of the “Urban Rearrangement Act” per se, not on the basis of the legal action of the specific developer, so registration is not the prerequisite of the acquisition of the property rights as is regulated by the Civil Code. Meanwhile, the property right clause of the “Urban Planning Act” which was equivalent to that of the “Urban Rearrangement Act” was close to be declared unconstitutional by our Constitutional Court in 2003. Five judges out of nine voted for the unconstitutionality of that clause in that case on the ground that ownership clause of that Act violated proportionnality principle of the Constitution or had the same effects of expropriation without just compensation which is forbidden by the Constitution of Republic of Korea. As long as the concern about the unconstitutionality of that provision of “Urban Rearrangement Act” remains, legislature should give continuing efforts to ensure the constitutionality of applicable provisions of the “Urban Rearrangement Act”. As to the property rights of the old facilities which will be demolished in the course of the urban rearrangement projects, the “Urban Rearrangement Act” regulates that it should be transferred to public or private project implementer without consideration. Our supreme court also holds that acquisition of the property right of the old facilities amounts to the compensation to the project developer who is liable for the construction of new infrastructure which will be transferred to the central or the local government. As to the scope of the old facility that will be transferred to the developer without consideration, our supreme court takes the strict opinion that the old facility shall be the urban planning facilitiy which has been previously decided so on the basis of urban management planning. The interpretational method of the court in that case can be explained as that of the systematical one, but the strict interpretation of the court brings about too much unfavorable results to the developer who has minor bargaining power compared to the government, Furthermore, the view of the court doesn’t go along with the legislative intention of the applicable provisions. On the other side, this rulings of the supreme court can be justified with the principle of state properties law, which gives priority to the will of the government when it comes to the legal nature of the property, rather than to the social experience of citizens on that property.