미국 규제적 수용에 대한 판단기준 = Analysis of the criteria for regulatory taking under the U.S Supreme Court

다국어 초록 (Multilingual Abstract)

In the present paper we shall see what regulatory taking is and how it works. Takings is an evolving area of constitutional jurisprudence that does not present precise standards or clear analytical approaches. Today it operates not only as a defense against government confiscation of property, but also as a check on the use of police power to regulate the use and enjoyment of property.
Back in the Pennsylvania case, 1922, Supreme Court Justice Homes, for the first time in history, acknowledged ‘regulatory taking,’ in his remark, “if regulation goes too far it will be recognized as a taking.” For the past 80 years, the U.S. Supreme Court has been forming the theory of judicial precedents, regulatory taking, at the crossroads of the public and private interests in a number of cases. Thus, regulatory taking is based upon constitutional grounds for protecting property rights from being infringed by state regulations.
However, the regulatory takings doctrine has developed disorderly developed, as Justice Stevens point out that even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence in the Nollan case, 1987.
This paper does an analysis of the criteria for regulatory taking from 1922 to 2005 provide that the Supreme Court has employed a categorical review and Ad hoc review. The former considers whether the action falls within some category for which compensation is always required no matter how minute the intrusion, and no matter how weighty the public purpose behind it in deciding whether challenged government action constitutes a taking. In engaging in the latter, ad hoc and factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. At the very least, it is to be hoped that this paper is able to provide an impetus for studying the regulatory taking.

참고문헌 (Reference)

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