[일반논문] 임시적 수용

Temporary Takings

Korean Constitution Article 23 ③ provides that expropriation, use or restriction of private property from public necessity and compensation therefor shall be governed by Act: Provided, That in such a case, just compensation shall be paid. The counterpart of the U.S Constitution also forbids the taking of private property for public use without just compensation. It is well-established that those constitutional guarantees are designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. There are subtle differences between two countries' takings clauses. In Korea, just compensation shall be paid for not only expropriation but also use Of restriction of private property. In the U.S., only the taking of private property for public use is guaranteed to be paid for just compensation, In addition to direct physical takings, the Court conceived regulatory takings for just compensation when government regulation went too far in the U.S. Several factors are considered to determine whether a government action constitutes a regulatory takings. Those factors are (1) the character of the governmental action or regulation; (2) the economic impact of the regulation on the claimant; and (3) the extent to which the regulation has interfered with reasonable investment-backed expectations. Temporary takings is related to the temporal aspect of property rights. There are two dimensions of a real property interest--the metes and bounds describing its geographic dimensions and the term of years describing its temporal aspect. The Court held that both aspects must be considered when viewing the property rights in its entirety. The Court denied the direct physical takings claims when government act physically invaded private property but its character was temporary and limited in nature in PruneYard Showing Center v. Robins in 1980. In 2002, the Court held that 32 month moratoria ordered by a government agency are not per se takings of property requiring compensation under the Takings Clause in Tahoe-sierra preservation council, Inc., v. Tahoe regional planning agency. Thus, temporal government use and regulation of private property are rarely considered as takings of property requiring compensation under the Takings Clause in the U.S.