재산권제한에 관한 입법기준 - 장기미집행 도시계획시설에 관한 헌법불합치결정의 분석을 중심으로 -

Legislation Criterion on the Restriction of Property Right - The Analysis of Unconformable to Constitution Decision on the Long-term Unexecuted Urban Plan Facilities -

1. CONTENTS (1) RESEARCH OBJECTIVES The constitution court has made unconformable to constitution decision against long-term unexecuted urban plan facilities. This lay the emphasis on legislator's decision in determining the content and limitation of property. This logic is based on the theory "Trennungstheorie". Trennungstheorie is to make legislation in the case of that legislator judges the necessity of compensation and then compensation provision is required. That is, it is focused on protecting from the quarrel of unconstitutionality previously. Accordingly, Trennungstheorie will contribute on the preparation of unconstitutionality judgment criterion and legislation criterion as a law is enacted to restrict property right. The purpose of this study is not only to explain the content and function of Trennungstheorie but also to suggest legislation criterion in association with the law enacting the restriction of property right. (2) RESEARCH METHOD To introduce Trennungstheorie, The gravel extraction decision of the german federal constitution court is intensively analyzed. To make criterion legislating the provision of property right, The decision of the constitution court related long-term unexecuted urban plan facilities is also analyzed. (3) RESEARCH FINDINGS Legislator should consider the essence of property right, social constraint, comparison principle and equality principle in preparing the provisions of property right restriction. Especially, the provisions constraining property right that impinge upon the owner's authority also should make proper progress period to correspond with the requirement of constitutional country. 2. RESULTS Trennungstheorie supports elastic discipline in the field of property law that has been incompletely enforced as social constraint. Particularly, various progress period provision and exceptional compensation provision are effective means to solute the cases of property right infringement. The most important fact in which the constitution court accepts Trennungstheorie is that the legislator has preferentially the right to establish limitation provision and content of legal property right by itself. Consequently, the duty of legislator and legislative criterion must be available to prevent the fallacy and bias from restriction of owner's property right. 3. KEY WORDS Trennungstheorie, long-term unexecuted urban plan facilities, Legislation criterion, property right