美國憲法上 財産權收用에 관한 節次的 保障

• 영문명: The procedural protection on taking of property rights under the American constitutional Law
• 발행기관: 한국부동산법학회
• 저자명: 이상현(Lee sang-hyun)
• 간행물 정보: 『부동산법학』부동산법학 제8권, 239~265쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.09.01

영문 초록

The fifth Amendment to the Constitution Says "nor shall private property be taken for public use, without just compensation"This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power. In this Clause, the court has provided clear tests for "public use", and "just compensation" and "taken"has been given limited, fact-specific definition. However, "property"had remained largely undefined. The constitution protects property under the due process and just compensation clauses. Although they appear different in scope and purpose, each clause requires that a court address closely analogous questions. The due process clauses ensure that the state and national governments cannot deprive individuals of life, liberty, or property, except by established judicial procedure. The due process clauses express the core substantive values that are the raison of constiutional government. neither the Fifth nor the Fourteenth Amendments was intended to frustrate the legitimate exercise of governmental authority to promote the public's health, safety, morals , or welfare, that is to say, they were designed to prevent government from depriving people of fundamental rights without a justification rooth in the public interes. Deprivations of property caused by governmental action obviously in voke consideration of the applicability of the due process clause. Also such situations could invoke analysis of the takings. The due process clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose.

목차

Ⅰ. 序 論

Ⅱ. 適法節次의 原理와 財産權保障

Ⅲ. 美國憲法上의 財産權收用과 補償

Ⅳ. 結 論

Abstract