영업 및 가격규제에 따른 손실감소와 보상가능성 ― 정책변화에 따른 사업자 이익침해에 대한 시론적 접근 ―

Nowadays, the state plays more active roles than ever in regulating society and the market on the grounds of issues of public policy, which leads to the restricting of personal liberty of business. Article 23 of the Constitution specifies the principle of fair compensation, together with the guarantee of property rights. Compensation is made when special sacrifices occur. More and more critics raise the issue to the effect that in terms of restricting rights by means of business and price regulation, it is unreasonable to accept the decision on the grounds that the regulation is implemented for the public regulation. Therefore, it is necessary to identify the nature and the content of each regulation and determine the scope in which it is accepted. Price regulation is usually imposed on general services, closely interwoven with the issue of the availabilities of subsidies. The regulation of business operation is designed to restrict specific activities in order to achieve the public interest pursued in the market. In reality, these regulations are hard to discern, and one regulation retains both aspects. In the event of violating the property rights with a view to policing business operation, there is no need for compensation. However, in terms of the policy, compensation can be made through legislation. In the case of implementing regulation for the public interest, adjustment measures are taken to address such issues arising when a limited period of business is guaranteed against excessive restrictions on goodwill without recognizing typical loss compensation. However, there still remains a counterargument as to whether the scope of loss should be excluded. On the other hand, it is necessary to take into consideration how the business operator has gained the right to the corresponding business operation in assessing the legitimacy of the compensation. If the rights of the business operator are based on patents, the state can exclude the compensation, precisely because it keeps the reservation of the right to approve prices and the activities of business operation. However, individual cases may occur in which reliance damages are required to be compensated to a specific individual as an operator of the specific business and the implementation of some compensation could be determined based on predictability. As for the government regulation, the United States has come up with the logic of the law in the form of regulatory acceptance. The theory is based on the idea that when excessive infringement of property rights incurs, the government intends to make compensation based on the judgement amounting to the exercise of public expropriation rights. The most crucial criterion in assessing regulatory acceptance is the rational expectation of profit. Germany has a similar system to Korea in implementing a loss compensation; however, it differs from Korean in the fact that it keeps the exceptional notion of adjustment compensation. Of course, this method of adjustment compensation comes in a wide variety of forms, such as subsidies and tax breaks, which are not a typical way of loss compensation. In the case of Japan, compensation is not made when the regulation is made for the purpose of policing safety issues, but compensation is made when the positive promotion of public interest is expected. As policies and means are diversified, issues have come forth in which projects in need of the infrastructure investment are involved in the business operator’s huge amount of investment. As a result, the subsidy has started to get paid to the effects of adjustment compensation and it is referred to as loss compensation. However, loss compensation derives from essentially adjustment compensation. It is expected that more positions will be expressed to demand compensation in the course of implementing complex pricing and operating regulations. Therefore, it is necessary to take into consideration the concept of compensation in the light of adjustment aspect, irrespective of how it is referred to.