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Regulatory takings and evasion of compensation requirement through overlapping regulations

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Frame of Image lations*
Hojun Lee, Fellow at KDI
“ The public’s awareness of property rights has improved significantly, and judicial authorities, including the Constitutional Court, more frequently rule in favor of property rights protection than ever before. Accordingly, it has become vital that a shift be made with regards to conventional perceptions of property rights protection and compensation, and existing systems are reformed in the process of adopting or upgrading regulations.”
Ⅰ. Introduction
Despite the high premium placed on the protection of property rights in the market economy, the government can also lawfully curtail these rights in line with public needs. Indeed, the constitution of the Republic of Korea stipulates that private property can be partially expropriated, utilized or restricted for public necessity, with the provision of compensation.1) In other words, even a market economy that is in full compliance with the principles of property rights protection can sanction the infringement of rights for the
* This paper is written based on Lee, Hojun, “A Study on Regulatory Takings and Property Rights: Focusing on Development Restriction Zones,” Policy Study 2015-09, Korea Development Institute, 2015 (in Korean). 1) Articles 23.3 and 37.2 of the Constitution of Republic of Korea.
KDI FOCUS
2
purposes of rectifying certain systematic side effects such as market failure. Nonetheless, to efficiently manage a market economy, explicit criteria— founded on fair, institutional an


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Title Regulatory takings and evasion of compensation requirement through overlapping regulations
Similar Titles
Material Type Articles
Author(English)

Lee, Hojun

Publisher

Sejong : Korea Development Institute

Date 2016-08
Series Title; No KDI FOCUS / No. 70, eng.
Pages 10
Subject Country South Korea(Asia and Pacific)
Language English
File Type Documents
Original Format pdf
Subject Economy < Economic System
Government and Law < Laws and Legislation
Holding 한국개발연구원; KDI국제정책대학원
License

Abstract

The public’s awareness of property rights has improved significantly, and judicial authorities, including the Constitutional Court, more frequently rule in favor of property rights protection than ever before. Accordingly, it has become vital that a shift be made with regards to conventional perceptions of property rights protection and compensation, and existing systems are reformed in the process of adopting or upgrading regulations.

- Korea lacks definitive criteria that define justifiable state limitations on property rights and compensation and instead, relies on the discretion of those who hold administrative authority.

- The two representative criterions to determine whether to compensate for loss are (1) wellrecognized right before infringement and (2) disproportionality.

- Representative regulatory takings that call for proper compensation include regulations on development restriction zones and development activity in areas designated for urban planning facilities.

- Despite the Constitutional Court’s decision in favor of compensation for the loss incurred via the regulations on development restriction zones and longprotracted projects for urban planning facilities, local authorities have sought to adopt additional regulations in order to evade paying compensation.

- Potentially overlapping regulations need to be overhauled, and regulations that may inflict severe damage to property rights must be based on the law, not on local ordinance. Also, sincere consideration should be given to adopting rules to provide just compensation for the loss incurred.

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