표준지공시지가 기준 토지보상액 산정의 공법적 쟁점 ― 헌법재판소 2009. 11. 26. 2009헌바141 전원재판부 결정 ―

The calculation of the compensation amount in the case of expropriation of land is a very important and difficult issue. The land value comprises of 80% or more of the total compensation amount, but it is difficult to calculate because of the lack of comparable sales. Article 23(3) of the Constitution stipulates that "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." Based on the premise that land may only be assessed by its objective value due to its nature by undergoing a reasonable adjustment which comprehensively takes into consideration of all of the elements affecting the formation of the price of the land based on the market price of a similar neighboring land, the Constitutional Court held that the calculation of compensation damages resulting from expropriation of land based on "officially announced price of reference land" does not violate the principle of just compensation under the Constitution. However, the argument that just compensation is not being made due to issues such as the officially announced value of land falls short of the market value has been constantly brought up. The Public Notice of Values and Appraisal of Real Estate Act provides that, where the value of land appraised by the certified public appraiser based on the officially announced price of reference land does not meet a just compensation amount, the project implementer may add, subtract or adjust the appraised value. However, the Act on Acquisition of Land and Compensation for Land, Etc. for Public Works does not provide for a provision which allows the project implementer to add, subtract or adjust the land value appraised by a certified public appraiser in calculating the compensation amount. Even if it is possible to find a valid cause for adjustment based on other factors through the interpretation of relevant laws and cases as it is done now, it is a limited alternative as the Act on Acquisition of Land and Compensation for Land, Etc. for Public Works does not expressly stipulate a relevant provision and it is determined that it can be reasonably resolved by legislating such provision. This study annotates public law issues surrounding the calculation of compensation amounts based on officially announced price for reference land from a critical point of view based on the full bench decision of the Constitutional Court in November 26, 2009, 2009HunBa141. The main issues include the meaning of "addition, subtraction or adjustment" of the officially announced price of reference land under the Public Notice of Values and Appraisal of Real Estate Act, the constitutionality of the calculation of compensation amounts based on appraised value of land, issues concerning officially assessed individual land prices and just compensation and the nature of the standard comparison table of land price.