계획제한으로 인한 손실보상의무와 건축허용성 ― 대법원 2023. 11. 16. 선고 2022두61816 판결 ―

Planning restrictions refer to restrictions on the exercise of land property rights by binding urban planning. Planning restrictions can be classified in various ways according to the criteria, but according to their effectiveness, they can be classified into plans that block development permission and plans that do not. The Constitutional Court's decision on planning restrictions and loss compensation obligations to block development permissibility found that if the land designated as an urban planning facility is land, the landowner will no longer be able to use the land for its previously permitted use (construction purposes), making it virtually impossible to sell the land and economically meaningful availability excluded. If land purchases by project operators are delayed for a long time and it is no longer required from an economic point of view, legislators are obligated to adequately compensate for harsh infringements on property rights through various compensation possibilities, such as granting the right to purchase, application for expropriation, cancellation of designation, and financial compensation. The requirement that Korea's current law recognizes the right to purchase as compensation for planning restrictions that block development permissibility is also similar to the purpose of the Constitutional Court's decision. The current law commonly stipulates “owners of land whose utility has been significantly reduced due to the designation of the zone, or land whose use and profit have become virtually impossible due to the inability to use the land in the restricted development zone for conventional purposes,” and the most important case is to prohibit the construction of buildings and changes in the nature of land. Whether or not development permit was already granted on the land at the time of the planning restriction is the primary criterion for determining the existence of loss compensation obligations. In the target judgment, the Supreme Court presented as a very important argument that the land in this case was designated as ‘paddy’ by the cadastral record as the basis for the specific judgment that the deviation or abuse of discretion was not recognized in the decision of the urban plan to designate an urban natural park zone in this case. This is reasonable as a heavy judgment on whether or not development permit existed on the land at the time of planning restrictions. It is believed that through the target judgment, an important criterion for judgment has been established in judicial review of the designation of urban natural park zones after the effect of the urban planning facility, which has been controversial so far. Except for the land that has already been granted development permit, the equation that there is no obligation to compensate for losses due to planning restrictions under the public law cannot be established. Even if there is no development permit on the land in this case, it is regrettable that the possibility of development permitting through land quality change procedures has not been considered at all. The criteria for judgment on this matter have not yet been established as a theory, so further follow-up studies are needed.