사회주의 국유재산의 재사유화 법제 - 통일독일과 헝가리의 비교를 중심으로 -

The task of property illegality in a socialist system must be resolved by considering the principles of the rule of law, justice, and the state’s financial status. In addition, in order to resolve these tasks, the scope of property illegality must first be determined. And also, the method of resolving property illegality must be decided. In the case of unified Germany, the scope of property illegality in the socialist system is divided into property illegality under the Soviet Occupation Law and the occupying power and property illegality after the establishment of the East German government. And the two are distinguished and a differential solution is adopted. In other words, property illegality under the Soviet Occupation Law and the occupying power is no longer canceled, and its resolution is left to the legislators of the unified German parliament. In contrast, property illegality after the establishment of the East German government is resolved through the ‘Property Law’, which transfers the laws regulating unresolved property issues enacted in the East German region before unification to the laws of unified Germany. The Property Law adopted the principle of ‘return by original object’ as a method of property illegality. However, when the problem of investment delay in the East German region arose due to the adoption of the principle of return, unified Germany adopted the principle of return as a solution, but exceptionally allowed for restoration through compensation when a special investment purpose was met. In other words, unified Germany adopted a method of modifying the principle of return to ‘investment priority over return’ when a special investment purpose was met while maintaining the principle of return as a method of restoration of property illegality. This modification of the principle of return by unified Germany can be said to be an attempt to harmonize the two: the realization of the constitutional values of the rule of law and the guarantee of private property rights, and economic efficiency. However, in order to achieve the purpose of promoting investment while making the principle of return of the original property, the enactment of several laws with complex contents was required in order to restrict return as a ‘principle’, and also caused much confusion in the practice of applying them. Accordingly, in order to minimize confusion in practice, the “Investment Priority Act” was enacted as a unified law that prioritizes investment, but the complexity and confusion of the procedures in practice were not easily resolved. In addition, the problem of clarifying ownership relations for the realization of the principle of return became a major cause of hindering the economic reconstruction of the underdeveloped East German region, despite the revision to ‘investment priority over return’ according to the Investment Priority Act. Just like unified Germany, property illegalities under the Soviet Occupation Act and the occupying power were committed in the Republic of Hungary before the completion of the socialist system. The early Hungarian parliament ‘excluded’ the problem of property illegalities under the Soviet Occupation Act and the occupying power in the first compensation law and adopted ‘compensation’ as a method of restoration of the original state, only covering property illegalities committed since the time of the enactment of the Hungarian Socialist Constitution. In response, the Hungarian Constitutional Court, unlike the German Federal Constitutional Court, ruled that the scope of property illegalities was unconstitutional as it only stipulated nationalization measures taken by law after June 8, 1949 (a discriminatory solution), and accordingly, the second compensation law was enacted. The Second Compensation Law was applied to the scope of property illegalities committed by the fascist dictatorship and Soviet occupation laws and the occupying powers prior to the establishment of Hungarian socialism, and resolved them by applying the same compensation calculation standards and compensation amounts as the First Compensation Law. In addition, the compensation principle of the Republic of Hungary can be implemented in parallel with the privatization of national property, unlike the return by original goods of unified Germany, and it does not cause investment obstacles due to investment delays due to the problem of identifying owners. However, the compensation principle is pointed out as a problem in that it requires a lot of compensation resources compared to the return principle. In order to overcome this problem, the Republic of Hungary adopted a means called ‘compensation certificate’ instead of cash. However, ‘compensation through compensation certificate’ cannot be in harmony with the complete compensation for property value required from the perspective of guaranteeing property rights under the constitution of the rule of law. Compensation through compensation certificate can be constitutionally justified in terms of the distribution of burdens imposed by the constitution and laws on those who acquire national property free of charge, and the social cost of system transformation. In a unified Korea, the task of property illegality under North Korean socialism should be resolved based on the unification constitution based on the liberal democratic basic order’ stipulated in Article 4 of the Constitution. Therefore, the legal principle of resolution based on the premise that ‘the effect of the West German Basic Law does not extend to the former East German system’, which is the constitutional basis for socialist property illegality in unified Germany, cannot be applied. In addition, it is difficult to constitutionally justify the method of resolving property illegality by distinguishing between property illegality under the Soviet occupation law and the occupying power and property illegality after the establishment of the East German government. The resolution of property illegality in a unified Korea should be based on the enactment of a unification constitution (or a unification constitution with a complete revision according to Article 4 of the Constitution), as in the case of the Republic of Hungary. In addition, when choosing a method of resolving property illegality under North Korean socialism, factors such as the rule of law under the Constitution, the economic situation of unified Korea, and the rapid reconstruction of the backward economy in the North Korean region should be considered. Considering the burden on the original owner of socialist national property under the Unification Constitution, the rule of law under the Constitution, and the economic situation of a unified Korea, it is considered reasonable to seek a solution based on the principle of ‘compensation’ rather than ‘return’ of the original property. The financial issue required for compensation to the original owner needs to be resolved through the ‘compensation certificate’ adopted by the Republic of Hungary as a country with historical experience.