재건축시장에서 증가된 용적률의 법적성질에 대한 연구

The controversy over the recovery of development profits in the reconstruction market is an intrinsic but old cliche of the reconstruction market. Since argument on what is the basis for the recovery and how much is appropriate seems closely related to many social issues such as income redistribution as well as stake holders' interest, and also affects other legal entities. In order to practically help the discussion on the development profit recovery, first, this study defines the premise- the cause of the 'development profit' as increase in the floor area ratio, and examines the legal nature of the increased floor area ratio. As a result of the review, the present 'determination of floor area ratio' regulation seems to be a profitable administrative act as well as discretionary act of 'judgment', a indeterminate concept demanding an administrative authority to conceptualize it in terms of legal requirement. However, since the determination of floor area ratio is derived from a definite mission of the nation, so-called the highest and best use of land, it should be defined as 'restricted discretion' in the sense that 'determination of floor area ratio' should be differentiated from general discretionary act although it principally belongs to an discretionary act. Certainly the judicial precedent uses the 'binding act' and 'restricted discretion' as virtually the same concept, however, which is verifiably not appropriate in view of Laun who introduced such concept for the first time. Considering that the present regulation also sees the development profit as increase in the floor area ratio, it is important to check out the legal nature of increase in the floor area ratio but the related study has not been actively proceeded yet. I believe that this study needs to be continued to help more meaningfully and effectively discuss the recovery of development profit, one of most intrinsic and fierce controversial topics in the reconstruction market.