공용수용절차에서 지장물인 건축물의 보상과 소유권 취득

In the realm of public law called the Land Compensation Act, it was difficult to find a discussion that dealt with legal issues related to the expropriation and compensation of buildings separately from land. Expropriation and compensation of buildings as obstacles are treated as secondary problems accompanying land expropriation, or have been misunderstood as if the same logic as land expropriation can be applied. The principle of relocation adopted by the Korean Land Compensation Act as a principle regarding the treatment of obstructions was introduced under the strong influence of the Land Expropriation Act of Japan. However, in Korea, where reinforced concrete buildings are the main type of building, it is inconsistent with the reality that relocationism is being applied to buildings indiscriminately from other obstacles. Apart from the legislative theory, there are two major problems in interpretation of how to deal with buildings that are obstacles under the current Land Compensation Act. The first is the question of under what circumstances the project operator will acquire the ownership of the building that is an obstacle (acquisition of ownership), and the second is how to remove the obstacle (execution). In this article, the issue of acquisition of ownership of a building, an obstacle that became an issue in the Supreme Court's 2018 Da277419 decision, was examined. In principle, the units of expropriation and compensation in the Land Compensation Act follow the jurisprudence of the Civil law, but it must be acknowledged that there are cases that cannot be resolved by that alone. In this case, it is necessary to rationally interpret the Land Compensation Act by fully considering the purpose of the public law, which is the proper expropriation granted by the Constitution and the implementation of fair compensation. Even in the interpretation of the current Land Compensation Act, it is not appropriate to narrowly interpret the application for an expropriation adjudication as in the current Supreme Court precedent. In the case where the project operator compensates the acquisition price for the building on the ground while expropriating the land, it should be considered that the land and the above-ground objects as a whole are the objects of expropriation. In this case, the compensation that appears in the adjudication of expropriation is also calculated based on the sum of the prices of the land and its land as a whole. The current practice of writing a decision order, which orders only the relocation of obstacles, needs to be improved in the form of ordering the project operator to acquire the land as a whole and the ownership of the above-ground building with price compensation.