토지재산권의 범위와 공용침해

Land property right shall be guaranteed according to the Constitution, but the concrete range and limit of its guarantee is embodied by the related statutes. Article 23 of the Constitution which addresses about the right of property provides as follows: (1) The right of property of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Act. (2) The exercise of property rights shall conform to the public welfare. (3) Expropriation, use or restriction of private property from public necessity and compensation therefor shall be governed by Act: Provided, That in such a case, just compensation shall be paid. Therefore, the contents and limitations of property right are concretized by the related statutes within the social binding, and simultaneously, expropriation of private property and compensation are also embodied by the related statutes. That means that the range of land property right is embodied by the social binding and the expropriation. In conclusion, the land property right is optimally guaranteed, on one hand by the just distinction between social binding and expropriation according to the rational criteria, on the other hand by the strict application of the conditions of expropriation which stem from the Constitution. The conditions consist of the principle of reservation of statute, the principle of public necessity, the principle of balance of interests, the principle of package clause, the principle of durable realization of public interests, etc. So, the criteria of distinction between social binding and expropriation and the constitutional conditions of expropriation are here addressed, and the pertinent statutes and decisions are critically examined.