This research seeks to examine development restrictions in terms of administrative plan and joint restrictions, explore the conditions of violation of private rights from development restrictions, and thereby identify restrictions and right-remedy schemes that are appropriate for Korea’s settings.
Land, an essential factor in people’s lives, indispensably needs a certain level of legal restriction. The autonomy of land ownership is decreasing in many aspects including its utilization, profit-seeking, and disposal. This is a phenomenon rising from the increase in laws on land development, and also a result of the government’s multifaceted efforts to maximizing the efficient usage of public land.
For a systematic utilization of the territory, a practical freedom on land use must be guaranteed, while the necessity of land and its development be recognized as a basis for people’s harmonious living. The nature of land utilization must be clearly set on legal grounds to be able to induce its development. Land development has been the new area of interest throughout the development of democracy, also in line with society’s conditions. In reality however, there are still certain weaknesses that point out the lack of a realistic plan of utilization and the seeking of profit.
Joint restrictions and development restrictions are being implemented, but the rationale of their implementation is still vague. Thus, a clearer set of logic must be reorganized on the guarantee process and regulation, as well as on profit and its utilization. Judicial reviews on decision making and the scope of loss compensation for infringed rights from development restrictions are set according to the German theory of “expropriatory-like infringement (enteignungsgleicher Eingriff).” Plan restriction is designated according to the specific use area and is further classified as districts or urban planning facilities. This however, also has a precedent of violating constitutional rights due to the lack of a clear-cut distinction. The relief of legal rights on plan restriction thus carries theoretical and management problems on the aspects of decision making, judicial reviews and loss of compensation.
In Germany’s case, compensation policies have been clearly set for the prohibition of changing the land’s nature and usage regulations on forms asides from architecture. Japan also has a set of clearly prescribed guidelines and regulations for city maintenance, natural sight development, green belt preservation, and disaster prevention. On the other hand, the United Kingdom constructed a well-defined compensation criterion as early as in 1971, which set the compensation criteria for urban and rural planning and the scope of compensation of its Land Compensation Act.
To improve policies to meet in line with domestic settings, there is a need to clearly prescribe the plan’s guarantee process, decision making and judicial reviews. Criteria for loss compensation of plan restriction must also lie in accordance with the nature, profit and disposal of the plan. The scope of citizen participation also needs to be expanded, while the government needs to work more actively to modify decision making, judicial reviews and compensation of decision making.
- 계획제한에 따른 귄리구제방안(Study on the remedy plan for violation of private rights from development restrictions)
- 류해웅; 최혁재; 박영하
계획제한에 따른 귄리구제방안(Study on the remedy plan for violation of private rights from development restrictions)
서울특별시 : 국토개발연구원
|Series Title; No||국토연 / 89-12|
|Subject Country||South Korea(Asia and Pacific)|
|Subject||Territorial Development < National Land Development|