再建築事業의 開發利益還收制度와 入住權

• 영문명: Right of occupancy and the development gain restitution system of the rebuilding project
• 발행기관: 대한부동산학회
• 저자명: 권대중(Kwon, Dae-Jong)
• 간행물 정보: 『대한부동산학회지』제23호, 149~162쪽, 전체 14쪽
• 주제분류: 사회과학 > 지역개발
• 파일형태: PDF
• 발행일자: 2005.06.30

영문 초록

A rise in the price of apartment housing, beginning from the Kangnam district of Seoul since the Korean foreign exchange crisis, has spread to all over the country as well as the Metropolitan area. To curb it, government issued numerous policy alternatives for the years. Among other things, it is thought that the obligation to construct rental apartment housing and regulations on the right of occupancy issued and implemented as part the development gain restitution system in the rebuilding project are likely to be unconstitutional and inconsistent with the logic of equity. It is required that the rental apartment housing be built at a given percentage of the floor area ratio increased from the existing floor area ratio due to the rebuilding project, which is the logic that the development gain restitution system imposed on land for the years should be applicable to buildings. This runs counter to the provisions of the Korean Constitution requiring “The right of property of all citizens shall be guaranteed” “The exercise of property rights shall conform to public welfare” is required in the Constitution. But the problem is whether the measure of the obligation to construct the given rental apartment housing exceeding the general tax in the rebuilding project can be seen as the action for restitution of development gain fit for public welfare. And an attempt to regard the floor area ratio increased due to the rebuilding project as development gain and restitute it is calculating unrealized profits and adopting it as the object of restitution. The judicial precedents cover several unconstitutional problems pointed out by the Constitutional Tribunal. The Constitution requires “The state shall make efforts for all citizens to live a comfortable residential life”, which imposes the obligation on the state. Excessive restriction on rebuilding by the state breaches individuals right to pursue happiness and the right to the residential environment and runs counter to the state s obligation to observe the Constitution. The public announcement made by government that the recently issued right of occupancy due to the rebuilding project should be regarded as housing runs counter to the logic of equity with the right of installment sale. This should be corrected as it is excessive restriction. Accordingly, a flurry of governmental policies aimed at putting restriction on the rebuilding project is the infringement of the property rights of all citizens. If this prevents the area necessitating the rebuilding project from being rebuilt at the proper time, it is seen to lead to the ghettoization of the area and deprive people of the right and opportunity to live in a comfortable space. It is thought that it is improper that government puts restriction on the rebuilding project alone in a bid to stabilize the real estate price. And it is thought that governmental policy for the rebuilding project should return to the policy for a majority of the members of the rebuilding association wanting to live in a new environment as for housing supply in the urban area.

목차

Ⅰ. 序 論

Ⅱ. 開發利益의 槪念

1. 외국의 開發과 開發利益의 개념

2. 開發利益의 槪念

Ⅲ. 住宅의 槪念

1. 외국의 住宅正義

2. 住宅의 用語整理

Ⅳ. 再建築事業으로 인한 開發利益의 還收

1. 個人의 財産權 侵害

2. 實現되지 않은 利得에 대한 課稅

3. 個人의 幸福追求權과 住居環境權의 侵害

Ⅴ. 再建築事業에서 入住權이 住宅인가?

1. 再建築 入住權의 持分을 住宅으로 본다면 아파트 分讓權도 住宅?

2. 入住權을 住宅으로 보는 경우 看做課稅에 違憲素地는 없는가?

Ⅵ. 都市 및 住居環境整備法과 기타법의 檢討

Ⅶ. 結 論