환상의 토지보상법(I): 공익사업법

The illusion of the status and function of the Land Compensation Act casts a deep shadow over our public law system. This shadow creates a wide range of blind spots in the application of constitutional principles on expropriation. The Constitution sets limits to the exercise of powers of all state agencies and stipulates the trajectory in which it must move. The design and operation of our current accommodation system is seriously deviating from the trajectory set by the Constitution. One of the main reasons is the illusion about the status and function of the Land Compensation Act. First, the problem must be accurately recognized. The solution is possible after that. The fantasy and practice of the current Land Compensation Act examined in this article are summarized as follows. First, there are various misunderstandings about the legal status of the Land Compensation Act. The Land Compensation Act is not a development project law that provides specific procedures and requirements for development projects. Conversely, the development project law is not a Land Compensation Act that regulates project recognition and expropriation decision disposition. Second, the Land Compensation Act is not a general expropriation law. Under the current law in Korea, expropriation is widely taking place outside the fence of the Land Compensation Act. Under our law, some expropriations has no institutional relationship with the procedure for expropriation prescribed by the Land Compensation Act, and acts independently outside the Land Compensation Act in accordance with the underlying laws of each system. In accordance with laws other than the Land Compensation Act, expropriation performed according to requirements and procedures different from the expropriation decision prescribed by the Land Compensation Act can be called ‘expropriation outside the adjudication’. In this article, it was argued that as representative systems that are the most problematic and controversial in reality among expropriation outside the adjudication in reality and in academia, ① the sales claim system in reconstruction projects under the Urban Reorganization Act and ② the replacement disposition under the Urban Development Act correspond to non-rejudgment expropriation, respectively. The Land Compensation Act does not perform the function of the Project Approval Law required by the Constitution even within the area of Adjudication expropriation according to the path of Project Approval and expropriation decisions under its control. In this article, it was named the internal collapse of the Land Compensation Act. The internal collapse is due to the cumulative trauma imposed by the provisions on the project recognition agenda of various development project laws. In terms of substantive requirements, development project laws selfishly stipulates the requirements for project disposition accompanied by the project recognition agenda only from the perspective of the development project law, but does not take into account the requirements for Project Approval. The heads of individual local governments, defined as development project disposals under various development projects laws, can be easily exposed to the political capture of regional development, and public needs for specific projects are not controlled at the stage of law enforcement, so depending on the operation of the development project law, the head of the local government may enjoy a position similar to that of a despot who determines which real estate use is better in his eyes through development project law. Fourth, in the area that causes the illusion that the Land Compensation Act will perform the function of enforcing the constitutional expropriation principle, the expropriation of property rights corresponding to the public law system is widespread. These expropriation systems are fleeing from the principles set by the Constitution, wearing the mask of a private law. The request for sale of reconstruction projects under the Urban Reorganization Act is a representative example.