미국에서의 토지이용 규제의 이중구조로서 부동산권에 부착된 규약(covenants)의 조정법리

In this paper, to get a viewpoint of legal significance of the agreement among the land owners on the land use, a basic consideration was given to the regulation of the joining area setting plan and the meaning of the adjustment of covenant in the United States. In the United States, the rule established in most of the state-level precedents, zoning, which represents public land use regulation, and covenants, which are regulating methods of private land use, exist independently of each other and are not legally related. This is acknowledged in that the use of zoning plan is embodied as the exercise of police rights, whereas the covenants are provisions of civil contracts. In addition, under this rule, stronger sanctions will eventually prevail if there is a difference between the two. Because of this, the intended use of joning plan can be virtually changed as covenants. Also, it is not recognized that the execution of covenants by local public entities nor the enforcement of the use of joning plan contrary to covenants is not illegal. The setting of zoning and covenants of the land use area are mutually independent principle, but it shows the change of the situation corresponding to the code when the court of the state changes exceptionally and refuses the execution of the code. Changes can be considered so that zoning does not have any effect on covenants in this sense. Although there is little doubt that the covenants in the United States correspond to civil contracts, it is possible to enforce successors of land under certain requirements, and that there is a academic doctrine that regulates public land use regulation. It is also very suggestive in the discussion of the legal nature of our conventions. Of course, such a form does not require the involvement of the administrative agency in the conclusion of the Covenant, nor is it believed that the enforcement of covenants to the successors of the land comes from the development of common law and equity law. Therefore, we are in a different situation from our construction agreement. In the United States, however, there is a debate that homeowners’ associations should use the same covenants as local public entities, which is similar to the administrative contract of our building agreement. From the viewpoint of covenants as a civil contract, the question of whether the conflicting civil contract and administrative contract with respect to the legal nature of a building convention is not necessarily essential. Considering that the US has a dual structure of land use regulation that has a similar function in the use area setting plan in the United States, in order to utilize the land use regulation according to the agreement between private parties, it seems that the significance of the existence of land use regulation by the national or local public entity that has been the subject of democratic control. The work to do this is to engage in the clarification of the jurisprudence that regulates land use regulation in accordance with the treaty between private parties and the interrelationship between the regulations of the state and local public entities, and whether there is a request to respect the agreement between the private parties legally and it is a precondition to examine the necessity of the same legal control over the state or local public. In this respect, it is subject to review the debate in the United States is not only about the democratic legitimacy and the point of rights protection, but also about the inclusiveness, planning, flexibility, and efficiency of land use regulation when comparing use planning and covenants.