西獨 憲法上 Junktim klausel에 관한 硏究 = A Study of the Junktimklausel in the Constitution of West Germany

다국어 초록 (Multilingual Abstract)

As the from of the state adopted by both the Federal Republic of Germany(Bundes Republik Deutschland)and the Republic of Korea is based on the principles of liberal democracy and capitalism, it is a logical conclusion that the individual right of property must be guaranteed. Particularly, from the institutional point of view of guaranteeing the property right of the people, similarity may also be found in the system of state compensation. This implies the system of compensation for loss resulting from or in connection with the lawful infringement of property right (Para. 3, Art. 22 of the ROK's Constitution; Para. 3, Art. 14 of the FRG's Constitution) and the system of compensation for damages done by the unlawful, liable infringement of property right (Art. 29 of the ORK's Constitution; Art. 34 of the FRG's Constitution). On the other hand, however, there is no specific provision for a compensation system in relation to illegal, no accidental infringement. In order to solve this institutional problem, West Germany laid down the so-called Junktim klausel or a collateral clause which defines the laws unconstitutional and nullifies them if they fail to contain any specific compensation provisions in the expropriation of property for public use. Thus the utmost efforts are made to guarantee the right of property. However, it was considered to be unreasonable to nullify the laws in their entirety for a simple reason of the unavailability of compensation provisions and attempted to find a proper way of claiming directly the loss based on the constitution. As a result, the Federal Court (BGH) developed the enteignungsleicher Eingriff and enteignender Eingriff which are intended to cover a weakness of the Junktimklausel. Judging that these theories could also be applicable in our country, where the system of state compensation is similar to that of West Germany, they are introduced in an effort to help enhance the theory of the guarantee of property right in our country.
The present paper comprises four chapters, discussing and analyzing the development and application of the theories referred to above by reviewing judicial precedents and legislation in relation to the theories.

목차 (Table of Contents)

• Ⅰ. 序 論
• Ⅱ. 附帶條項의 意義와 機能
• Ⅲ. 附帶條項의 問題點과 回避試論
• Ⅳ. 結 論