불법형질변경토지의 보상평가와 현황평가원칙

This article examines the legal concept of “land the form and quality of which have been changed unlawfully” under Article 24 of the Enforcement Rules of the Act on Acquisition of and Compensation for Land for Public Works Projects and systematizes its requirements, scope, and implications for compensation valuation. The study first distinguishes unauthorized alteration from unlawful alteration and identifies such land as a statutory category introduced to justify an exception to the principle of valuation based on current use. It conducts a comprehensive review of land-use control provisions under the National Land Planning and Utilization Act and other public law statutes, classifying regulations on alteration of the form and quality of land into four types (A–D). Although Article 24 formally takes the form of an administrative rule, the article argues—consistent with Supreme Court precedent—that it functions as a binding subordinate regulation where it supplements the Act based on a concrete statutory delegation. Regarding the interpretation of requirements, “alteration of the form and quality of land” is construed broadly to include not only physical modification (cutting, filling, grading) but also changes in land use linked to building permissibility or planning regulations (e.g., farmland, forest, or grassland conversion). “Relevant statutes” are interpreted to include not only development-permit requirements but also individual statutes that prohibit alteration upon zone or district designation and require a permit or acceptance-type notification as a condition for lifting such prohibitions. Unlawfulness is generally limited to cases lacking the required permit or notification, although alteration within areas where alteration is absolutely prohibited constitutes illegality per se. For determining the reference time, the study categorizes land into forest land, farmland, urban planning zones, and green belts, and sets the general reference time at the point when the first legal restriction became effective. The supplementary transitional rule for land incorporated into a project district as of 7 January 1995 is treated as creating an exceptional valuation regime based on actual use at the time of appraisal. The study further analyzes issues such as determining the time of incorporation into a project district, assessing cases involving inclusion in multiple project districts, and reviewing relevant Supreme Court jurisprudence. Special issues include the applicability of Article 24 even when the State or a local government is the actor responsible for the unlawful alteration, subject to the limits imposed by the principles of good faith and prohibition of abuse of rights. The study also addresses the distinction from uncompensated land, valuation where post-alteration use is inferior to prior use, temporary uses, and the allocation of the burden of proof.