국토의계획및이용에관한법률 제95조 제1항의 위헌성 ― 골프장 부지의 수용 근거 규정으로서의 기능과 관련하여 ―

Title
국토의계획및이용에관한법률 제95조 제1항의 위헌성 ― 골프장 부지의 수용 근거 규정으로서의 기능과 관련하여 ―
Other Titles
The Unconstitutionality of National Land Planning and Using Act Which Authorizes Takings for Golf Club
Author(s)
금태환
Keywords
construction of golf club; public needs; principle of proportionality; city management plan; Kelo decision; Diamler-Benz decision; 골프장 건설; 공공필요; 비례의 원칙; 도시관리계획; Kelo 판결; Diamler-Benz 판결
Issue Date
201008
Publisher
행정법이론실무학회(行政法理論實務學會)
Citation
행정법연구, no.27, pp.257 - 283
Abstract
National Land Planning and Using Act § 95(a) authorizes takings for city planning facilities and the golf club is included in the city planning facilities. This means that the takings for golf club are possible. This article deals with the constitutionality of such a clause and concludes that it is unconstitutional, since it lacks the public needs requirement which the Korean Constitution requires for the takings. Public needs should be interpreted basically to protect the right of property, even if they are evolved from public use to economic development nowadays. So the profits of privates or special group can't be public needs. The sport of golf is enjoyed by the only approximately 2% of Korean people and can not be talked the sport of most of the people in the sense of possibility. National Land Planning and Using Act itself does not predict the takings for golf club initially, but the Establishment and Using of Sports Facilities Act make it possible to take other's properties for construction of golf club later. At first, the former Act only regulates city planning facilities and the takings for them. Later, the latter Act names the golf club as city planning facility and the rulemaking of the former Act confirms that the golf club is a city planning facility. Here's first problem. The rulemaking of executive which is not a statute can not deal with such a thing as important as takings. Furthermore it can not be talked that the the construction of the golf club has the character of public needs. The Kelo decision in U.S. Supreme Court tells that the concept of public use can be interpreted broadly and court has to defer to the legislative determination about public use. Diamler-Benz decision in German Constitutional Court says that the public welfare in city planning and takings is different. Determining the validity of National Land Planning and Using Act, Diamler-Benz decision is helpful. In the National Land Planning and Using Act, there are only the regulations that defines the public welfare in the city planning and there are not the regulations that have procedures for determining of public needs for takings. So the clause that authorizes takings for golf club is unconstitutional, not meeting the requirement of public needs for takings.
URI
http://hdl.handle.net/YU.REPOSITORY/23742
ISSN
1738-3056
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법학전문대학원 > 법학전문대학원 > Articles
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