헌법상 재산권보장과 토지공법과의 관계에 관한 고찰

Abstract Land public law, in a broad sense, refers to laws that regulate and restrict land through land ownership, use, development, preservation, management, transaction regulation, public acquisition, return of development profits, taxation, etc. The constitutional basis for land public law is the socio-state principle, the social market economy order under Article 119 of the Constitution, the limited legal reservation of property rights in the latter part of Article 23 (1) of the Constitution, the social binding nature of property rights under paragraph 2, acceptance of public needs under paragraph 3, resources and national land planning policies under Article 120, and the concept of land disclosure derived under Article 122. The question is to what extent is the restriction allowed in relation to the guarantee of property rights guaranteed as basic rights in the front part of Article 23 (1) of the Constitution. The guarantee of property rights in the front part of Article 23 (1) of the Constitution is essentially to guarantee the right to use, profit, and dispose of property objects, while the above constitutional provisions on which the land public law is based are the regulations and restrictions on land. As long as the Constitution exists as the highest law in the country, the problem of conflict between the provisions of the Constitution should not be left alone, but systematically and normatively resolved. In paragraph II, this study first summarizes the normative meaning of property rights guaranteed by basic rights under the Constitution. First, in order to clarify the normative meaning of property rights guarantee, second, limited legal reservation of property rights, third, social binding of property rights, and fourth, public infringement of property rights. In paragraph III, the contents of the land construction method are: first, the normative system of the land construction method, second, the Framework Act on National Land and the restriction of land property rights, third, the concept of land disclosure, the restriction of land property rights, and fourth, the legal meaning and contents of the land transaction permit system under the Act on Real Estate Transaction Reporting, and paragraph IV. describes the establishment of the relationship between property rights guarantee and land use and development, second, the relationship between land use and development and land property rights from a balanced or guaranteed point of view, and third, the limitations of land property rights restrictions, etc., and paragraph V. synthesizes the above discussion to propose a solution to the problem arising from the conflict between constitutional property rights guarantee and land construction method.