무허가건축물등 부지의 보상기준에 관한 소고(小考)

Abstract Unlicensed buildings are subject to public law controls such as demolition orders; therefore, their site is generally evaluated not at the "valuation date" but based on the use conditions at the time the unlicensed building was constructed or its use was changed—that is, as if the building did not exist at the valuation date (an exception to the principle of valuation based on the current condition). However, under the Land Compensation Act, unlicensed buildings existing as of January 24, 1989, are regarded as lawful buildings for compensation purposes. Accordingly, the site on which such buildings stand is evaluated as "buildable site" based on the actual use conditions at the valuation date(an exception to the exception of the current condition valuation principle). For unlicensed buildings to be recognized as lawful under the Land Compensation Act, it must be established that they existed on January 24, 1989, and that "identity" exists between the building at that time and the current structure. Even if the original physical form of the unlicensed building existing on January 24, 1989, has not been perfectly maintained, it is reasonable to acknowledge identity if changes are limited to simple maintenance or changes in use that do not require permits under relevant laws, such as major repairs or rebuilding, and if the main structure of the building remains intact(a normative standard). Since unlicensed buildings often lack official records such as building registers or real estate registries, it is usually difficult to accurately determine information essential for calculating compensation amounts, such as floor area and site area. Therefore, normative judgment inevitably plays a role in calculating site area. To enhance objectivity in this calculation, it is reasonable to principally measure the site area based on the objectively measurable floor area of the unlicensed building. However, to recognize any area beyond the floor area as part of the site for the unlicensed building, it is rational to require the site owner to prove that the site falls within the scope necessary for the use or enjoyment of the unlicensed building or is indivisibly used according to the building’s purpose.