Earticle

초록

영어

The Constitution Article 23 (3) of the South Korea stipulates that “Expropriation, use or restriction of private property from public necessity and compensation therefore shall be governed by Act: Provided, that in such a case, just compensation shall be paid.” Our Constitution Article 23 (3) has been called the taking clause. Taking Clause of the United States that can be compared with Article 23 (3) of our constitution is the Fifth Amendment. The Fifth Amendment of the United States constitution stipulates that “No person …… nor shall private property be taken for public use, without just compensation.” When we compared with the Taking Clause of the two nations, we can see that the constitution of the South Korea is expressed in ‘public necessity’, while the constitution of the United States is expressed in ‘public use’. But the legal scholars of the South Korea interpret substantially meaning of the two terms as the same thing. Therefore, it can be said that the two nations have the same article clauses. The nation where have raised a lot of debate in the legal interpretation of taking clause seems to be the United States than to be South Korea. In particular, after Kelo decision, the political and legislative countermeasures in the United States are throwing us a lot of implications. Here, the points that we need to pay attention are legislative countermeasures against the eminent domain abuse. In order to solve problems of eminent domain abuse in the South Korea, there are two methods. One is to clearly specify in detail the concept of public use; another is to prohibit private operator from condemning individual’s property. In this aspect, it is desirable to amend the constitution or the statues that the taking agency can’t expropriate the private property merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken. If this is difficult, it is desirable to amend the constitution or the statues that can restricts entirely the taking of private business operator for redevelopment of delighted areas as well as the taking of private business operator for economic development. It is not desirable to be imposed some citizens, because the public burden of public expropriation is to be imposed some citizens, not to be imposed on some citizens.

목차

I. Introduction
 II. Eminent domain abuse cases in the United States
  1. Berman v. Parker
  2. Hawaii Housing Auth. v. Midkiff
  3. Poletown Neighborhood Council v. City of Detroit
  4. County of Wayne v. Hathcock
  5. Kelo v. City of New London
 III. Political and Legislative Response of the United States after the Kelo decision
  1. The Political Response
  2. The Legislative Response
 IV. Eminent domain abuse cases and Implication in South Korea
  1. The Supreme Court’s decision in South Korea
  2. Implication of the United States cases
 V. Conclusion
 Bibliography
 [ABSTRACT]

키워드

저자

• Min Seok, Sim [ Doctor of Laws, Cultural Institute of Comparative Law, Dongguk University ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  DONGGUK LAW REVIEW

• 간기

  반년간

• pISSN

  2287-9676

• 수록기간

  2012~2025

• 십진분류

  KDC 360 DDC 340