헌법질서 하에서 토지재산권 행사의 제한문제- 토지공개념 논의를 중심으로 -

This article deals with “Restriction on Land property right under constitutional order” and focuses on reviewing about the public concept of land ownership. First of all, I examine characteristics of land which significantly different from other property rights, and draw a fundamental concept ‘the public concept of land ownership’ from on the basis of those which attempt to keep a balance between property right and public interest. The public concept of land ownership is based on Para 2 of Article 23 and Para 2 of Article 120 and Article 122 of the Constitution etc., including principle of social state. On the other hand, restriction on land property right by the public concept of land ownership is criticized for a historical counteraction and a dangerous conceptualization of socialism system. Of course, no matter what we accept ‘the public concept of land ownership’, abolishing the private property system and changing into socialism system are constitutionally unacceptable on account of deviating from justification scope of fundamental right restriction. Anyway it is important not to absolutize both property right and public interest. Meanwhile, the laws based on the public concept of land ownership legislate in the late 1980s are made a decision on unconstitutionality by constitutional court. By the way, decision on unconstitutionality by constitutional court may be criticized in view of constitutional trial’s functional limitation or normative limitation of constitutional court function or fulfillment of faithful constitutional argument. I expect land property right to design rightly not being partial either of property right or public interest in the constitutional view.