개발사업에서 국공유지의 법적 지위

The development project aims at creating residential land or building an apartment complex on a certain area of ​​land. The land of the development project often includes the land owned by the state or the local government, and this land, which is distinguished from the land of the private persons, is called the government-owned land. There are few provisions on how to deal with the government-owned land in development projects, and these provisions were not legislated in the light of the whole legal system, but were just made to meet the practical necessities. However, since the government-owned land has various issues such as the acquisition timing of the land ownership, the procedure of acquisition, the use relationship, and etc. from the perspective of the entire development project, the general and systematic review is needed as below: First, the ownership of the government-owned land is not simply transferred to the project implementer in the process of development project, unlike the land of private person in which the ownership can be easily transferred only by a contract. Some of the laws related to development projects provide provisions on the time and procedures for the project implementer to acquire the government-owned land, which are not enough to fully regulate the transfer of the ownership. With regard to the general obligation of the project implementer to acquire the land ownership, it is highly necessary to explicitly legislate the obligation of the (local) government to transfer the ownership of the government-owned land to the project implementer, and also the timing of transferring the ownership. In the case of public facilities, it is necessary not only to create the exemption of the exchange relations, but also to regulate when the government-owned land, which is not public facility any more due to the use rescission, should be transferred to the project implementer. Second, unlike the National Land Planning and Utilization Act, the Urban Development Act demands the project implementer to meet two land acquisition requirements without a clear purpose: one is to be designated as a project implementer, and the other is to expropriate land. However, it seems unreasonable to set another requirement for the project implementer to expropriate land in the project of expropriation method. The provisions need to be revised to let the project implementer expropriate land without any further requirement, so that the consent requirement of at least one-half of the landowner must be moved to the requirement of designating the project implementer from the requirement of expropriating land. Third, all the government-owned land should belong to the project implementer to finish the project by the time the development project is completed. During the project procedure, the use rescission is required for the administrative property among the state property under the State Property Act, and the ownership of the general property owned by the state should be transferred to the project implementer. Therefore, it would cause a serious problem when the use rescission may or may not apply to administrative property depending on each law related to development projects, and especially when the time of rescission is unstable. In the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents Urban Development Act, and etc., it is necessary to uniformly make the provisions to deem an implementation plan as the use rescission. In this case, the procedure for hearing an opinion of the (local) government who manages public facilities and the government-owned land should be prepared when designating an urban development zone or preparing development plans. Finally, if the use rescission of administrative property is legislated as above, only the use of the general property owned by the state in the project zone will be an issue. Therefore, it would be better to make the provision that allows the project implementer to use the general property or that regards the rental contract is made between the project implementer and the (local) government. On the other hand, if the provision on the use rescission is not legislated, since the administrative property will be retained for a considerable period of time in the project zone, the provision should be made to regard that the permission to use and make profit of the administrative property is issued. Generally, it is not appropriate to charge a rental fee to the project implementer for using the government-owned land in the urban planning project. It is necessary for the court to change the interpretation or to declare a legitimate principle for this purpose.