공용수용에 있어 공익성 검증 제고를 위한 제언: 권력분립의 원칙에 기반하여

The social utility of forcible acquisition of private property to implement a facility construction project that would benefit the general welfare and the legal principle of respecting and guaranteeing property rights are inherently in conflict. Thus, in order for the competing values to coexist in a harmonious manner, Article 23(3) of the Constitution stipulates that such projects shall entail “public necessity.” Therefore, it should be noted that the presence of “public necessity” should be seen as the basis for the existence of the right of expropriation that must be maintained throughout the expropriation process, and that a strict verification system guarantees the constitutional justification of expropriation. Permission of a public project is a procedure to check whether a project promotes public-interest. In many cases, project runners can take lands without permission of a public project. Another administrative disposition is regarded as permission of a public project. It is called quasi-permission of a public project. Quasi-permission of a public project can stultify examination of public-interest to disintegrate the procedure of takings. Quasi-permission of a public project should be reduced in stages and abolished in the long term. Interested parties should be guaranteed to participate in the procedure so that the public interest verification procedure can be carried out through appropriate checks. The judiciary should show an active will to verify the public interest.