미국헌법상의 연방대법원의 손실보상의 판단기준

• 영문명: A Study of "just compensation." for a public use Under The Fifth Amendment of the United States Constitution
• 발행기관: 세계헌법학회 한국학회
• 저자명: 이기한(Lee Ki Han)
• 간행물 정보: 『세계헌법연구』世界憲法硏究 第12卷 第1號, 215~244쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.06.01

영문 초록

  The Fifth Amendment of the United States Constitution allow private property to be taken by eminent domain only for a "public use." Traditional examples of "public uses" for which the government might exercise its power of eminent domain include such things as schools, roads, libraries, police stations, fire stations and similar public uses. It should be noted, however, that the term "public use" has been interpreted very broadly by the Courts. The project need not be actually open to the public to constitute a public use. Instead, generally only a public benefit is required. Elimination of blight through redevelopment projects, for example, has been held by the Courts to constitute a public benefit which satisfies the "public use" requirement of the Federal and State Constitutions. Recent cases have even allowed the use of eminent domain for the sole purpose of increasing tax revenues. This is true even though the property might be transferred to a private developer and may never be open to the general public.
  The Fifth Amendment of the United States Constitution provides that private property may not be taken for a public use without payment of "just compensation." Similarly, the California Constitution provides that private property may not be taken or damaged by the government unless it pays "just compensation." "Eminent domain" - also called "condemnation" - is the power of local, state or federal government agencies to take private property for "public use" so long as the government pays "just compensation." The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property. The constitutional requirement of just compensation applies not just to the record owner of the property, but to anyone whose property interest is acquired by the government agency. For example, a business tenant on property to be acquired by eminent domain may be entitled to compensation for the value of his leasehold interest, the value of his fixtures and equipment, and the loss of business goodwill suffered as a result of the government agency"s acquisition. Despite all the attention focused on the Takings Clause in recent years, the remedy for government takings of private property has been largely ignored. This Article examines different approaches to valuing takings. Until now, takings scholarship has focused primarily on the liability question: What government actions count as takings of private property? The remedy question, however, is equally important to the Fifth Amendment"s protection of private property: When the government takes property, how should just compensation be assessed? It is settled law that compensation for takings is measured by the fair market value of the property taken, but this standard hides a number of important decisions - what the Article dubs valuation mechanisms - that can dramatically alter a property owner"s recovery. These include, among others, choosing whether to value the property by the owner"s loss or the government"s gain; allocating development risk between the government and the property owner; and selecting a valuation date for the property. This Article identifies nine separate valuation mechanisms, examines their application in the case law, and argues that their application corresponds to different, substantive takings theories. The real question is: what should be done about compensating for eminent domain actions? This paper argues that society must no longer take the just compensation requirement for granted. Rather, a critical analysis of the effects of guaranteed state compensation reveals that it creates socially perverse incentives for landowners to excessively improve their land, and that government reimbursement is necessarily accompanied by non-trivial administrative and transaction costs. I will explore the possibility of abolishing the mandate of state-provided compensation, a

목차

Ⅰ. 서론
Ⅱ. 미국헌법상의 연방대법원의 손실보상 규정
Ⅲ. 미국헌법상의 손실보상의 판단기준
Ⅳ. 미국헌법상의 최근판례 동향 - 엄격한 수단과 목표
Ⅴ. 결론
참고문헌
ABSTRACT

키워드

정당한 보상 요건 공적 부담 수용조항 미국 연방헌법 토지사용규제 just compensation eminent domain public use Property Remedies Takings