토지개발권 성립의 토지법적 고찰

Land development right is divided with the development authority of the land ownership to be belonged to the country, and when the development by the developer is complete, the state change right of the land is extinct and has the characteristic of instinctively regressing to the original state utilization right of land ownership authority (Regression). Also, it is not a unified right of several rights mixed to become one, but several rights gathered to become one right (Collectivity), and this is the change in the traditional concept of land ownership. Also, the development right is focused on the construction right in contents of structure installment rightㆍland form change rightㆍsoil and stone collection rightㆍland division rightㆍobject stowage rightㆍdevelopment value right, and legal relation and individual rights in the Public Service Act apply in complex to satisfy its purpose (Complexity). For this, if the developer is an implementer other than the country and public organization, even though it is a subject of private economy, considering that it is the public service implementer like the country and the public organization according to the procedure in the 「Public Service Act」, the point that the permission of development is exempt in principle, land expropriation claim right is acknowledged, and on the point that the rights and obligation relation from the development is argued through administrative lawsuit, that land development right has the property of public right same as the case of the country and the public organization. Thus, land development right was separated from the land ownership right from the enforcement of development activity restriction or development permit system, and the development permit can be interpreted as the authorized activity of patent or license to be the basis for the development right. However, generalizing the land development right theory in the existing civil law or in the system of Land Regulation Act is seen to be difficult. Therefore, it is considered that the land development right should supplement constitutional land right theory and civil real right theory to establish a framework act of land in social law ideology where the public and private interest can independently harmonize, and basis for a substantial law of land development right must be provided on this to continue the study systematically.