기부채납의 부담에 대한 독일과 미국의 사법적 통제의 비교와 그의 시사점

In this paper, I have made a few suggestions after introducing the legal system of Germany and the United States on exactions, while dealing with the problems related to the application of principles as such prohibition of unfair attachment (or nexus) and proportionality. First, in relation to the object of exactions, in Germany and the United States, cash is also used in addition to goods as such real estate. I believe that we also need to allow exactions by cash in Korea. Second, legal precedents in Korea affirm that exactions can be independently challenged from development permits and cancelled. Since there could be circumstances where the problems of lack of roads, parks, and elementary schools are left unattended for a long time after the construction of public facilities required by exactions is abandoned and large-scale apartment buildings are constructed, it is problematic to always enable independent cancellation of exactions. Third, although there are not enough legislative standards for exactions in Korea, there is no explanation in reasoning judgements as to the negative effects of the real estate development that the court is trying to solve with the exactions, making it doubtful whether prohibition of unfair attachment (or nexus) is properly applied. Also, the explanations of the principle of proportionality are so vague and insufficient that conflicts surrounding the standard are not resolved. The Court should make efforts to exercise normative power with more specific standards of proportional principles, and the US case law presented in this article will provide important implications. Fourth, while there have been efforts to clarify standards of exactions in Korea, there are still cases where exactions are required in the form of administrative acts or contracts without legislative basis. Detailed standards of exactions in actual statutes will bring desirable outcomes for constitutional rule of law administration, such as the increase in transparency and predictability of the administration and the possibility of equitable application of standards. If exactions are required based on detailed standards that is established in legislative statutes and the standards are rational, the court will be able to promote enactment of legislative standards by respecting them. Fifth, the issue of who is responsible for proving the necessity of exactions and compliance with its limitations is important in the United States. In Korea, the court should be able to conduct a full judicial review on exactions with high economic value, which are issued without detailed standards in the law, and the administrative agency shall be liable for burden of proof about the legitimacy of the exactions. Sixth, whether or not the residents of the business area can enjoy the benefits of the construction of public facilities can be influenced by whether the location of the exaction is within the business area or outside the business area. Therefore, if the exaction is located outside the business area, it is reasonable that the administrative office should prove the reasons for justifying it.