토지소유권의 공익적 제한을 위한 실증적 근거-토지용익권 강화를 촉구하며-

The legal idea of absolute ownership was made in accordance with the demands of the modern western society, and it is by no means an absolute proposition. In particular, excessive investment in land and the maldistribution of land as a productive goods throw dark clouds over the national economy in our society. Many people think that land ownership (speculation) is the most obvious way to accumulate wealth rather than production activities. If this phenomenon persists, there will be a threat of democracy and the rule of law, as well as economic and social stability, which we enjoy today, due to the economic deprivation and the gap between the rich and poor caused by the decline in productivity. While a legal measure to improve this phenomenon may require the country to collect income from the land created by the unearned income, it is more effective to strengthen the usufruct rather than ownership of the land especially as a productive material. This article introduces empirical studies that indicate that ownership is derived not simply from ideology but from practical functions that must reflect the realistic needs of the society. The original reason for allowing a person to own the land was to make better use of it and enhance the productivity of society as a whole. Our reality, however, is that by protecting the land ownership, the use of the land has been hindered and turned into a target of speculation. If so, it is time to return to the starting point and improve the system to enable production activities by using land properly. As the farmland was distributed to farmers to realize the "Tillers Principle[耕者有田]", it is time of “Users Principle[用者有地]” that is to strengthen the usufruct of land to ensure the right to use land for those who need it for production activities. If the usufruct of land is strengthened, the idea of land speculation as a source of wealth will naturally become slimmer. The idea of giving priority to usufruct, not land ownership, is consistent with our traditional legal sense. And above all, it is necessary for the revitalization and continuous growth of our economy in reality. As a measure to achieve this, it is most obvious that the legislative method is most effective. However, I think it essential for the judiciary to operate the law on the front line and the legal experts who provide the theoretical basis, that the accurate diagnosis of our society is essential along with practical and flexible thinking about land ownership.