개발제한구역지정에 따른 손실보상 - 헌법제23조와의 관계에 의한 해석론 -

A Demage Compensation for Appointment of a Development Limited Area - Study on Analysis Theory that is Connected with Constitution Article 23 of Korea -

1. CONTENTS (1) RESEARCH OBJECTIVES Purpose of research, reappraising damage compensation theory about greenbelt appointment regarding constitutional law article 23, is to contribute in damage compensation theory development and furthermore to contribute to guarantee in people's property rights. (2) RESEARCH METHOD To introduce "Bundesgerichtshof' Schwellentheorie" and "Bundsverfassung -sgericht' Trennungstheorie" of Germany, Examine damage compensation theory of previous our country, and examine and analyze precedent of the Constitutional Court and the Supreme Court. (3) RESEARCH RESULTS Separation theory(Trennungstheorie) of commonwealth Constitutional Court(Bundsverfassungsgericht) of Germany keeps away extension that exceed of accommodation concept, and logical analysis of Germany' constitutional law, respective independence of the three powers, developed analysis of new accommodation theory for people's continued existence guarantee and so on of property rights furthermore. Separation theory grasps from contents of property rights to problem of legislation formation. Because grasp Germany constitutional law article 14 the first clause, the second clauses to contents of property rights. On the other hand, accommodation grasped by area that need compensation. Separation theory can be suitable in respective independence of the three powers, and seek variety in civilianizations' property rights guarantee than border theory, and there is advantage that can pare down burdensome business defrayment as court. 2. RESULTS Examined, regarding damage compensation theory. analysis loan of the Germany Supreme Court and constitutional court and analysis our country Supreme Court and of constitutional court. The Germany Supreme Court of the United States grasps property rights limitation form into emaciated look with social binding, and social binding is limitation that there is no radish of compensation, and accommodation grasped by social regulation that it is radish of compensation. That is, social regulation is accepted if social regulation omits limit(border theory). The Germany commonwealth Constitutional Court is prevention of extension that exceed of accommodation concept, logical analysis of Germany fundamental law, respective independence of the three powers, grew new accommodation theory for people's continued existence guarantee of property rights and so on. furthermore. New accommodation theory says that is separation theory or cutting theory, this social binding and expropriation grasp by different area and social binding grasps to contents of property rights, and accommodation grasped by limitation of property rights. (Germany constitutional law(Verfassungsrecht) article 14 the first clause, the second clauses) There is advantage that can be suitable in priority respective independence of the three powers by advantage of separation theory, and seek variety in people' property rights guarantee, and can pare down burdensome business defrayment as court. Our constitution article 23 is placed in situation similar to Germany by relation similar to Germany. Our Supreme Court falls in love though is gaining border theory and the Constitutional Court is selecting separation theory. By the way, our constitution is prescribing use as well as accommodation, limitation unlike Germany fundamental law (Verfassungsrecht) from article 23 the third clauses, is recognizing concept of official business infringement extensively more than Germany fundamental law. Close intimacy of greenbelt that is type of qualification of property rights is that do official business saliva and is public opinion type. And by property restriction in public that appointment of greenbelt is property rights form, must keep package deal clause in case escape limit of social binding. in this case, thing which apply and foretell special sacrifice theory (sonderopfertheorie) by standard that judge if escaped limit of social bind