再建築事業의 開發利益還收制度와 入住權

Right of occupancy and the development gain restitution system of the rebuilding project

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.