생활보상의 이론과 실제

다국어 초록 (Multilingual Abstract)

Livelihood compensation refers to material compensation or support to people whose bases of life are being changed due to a public project so as to enable them to lead normal lives as before as members of the society.
The legal basis of livelihood compensation can be found in Article 78.1 of the Law on Acquisition & Compensation of Land for Public Projects, which states, "The project implementer shall either prepare and implement a relocation plan for or pay relocation expenses to those persons whose bases of life are lost due to construction of apartment buildings through a public project, in accordance with the specifications of pertinent executive order."
Compensation for public expropriation is provided for those whose property rights are lost because of a public project. And the requirements of such a compensation must be clearly specified in advance in pertinent laws. Whereas there already exists the provision for compensation for the property right, other compensation provisions of livelihood compensation are necessary for the following reasons. First, from the viewpoint of 'loss of basis of living,' which is an aspect of the livelihood compensation, the property right is only a part of a family's living and does not represent the entirety of their living. In other words, not all of losses of a person's living through public expropriation are compensated by the compensation for the property right. Secondly, social considerations and support measures are necessary to enable those persons whose bases of life are lost to start their new living in another location at the same level as before the expropriation. Compensation for the property right is an individual compensation, in principle. That is, it is based on the view that once individuals are compensated for the things of their possession, that completes the entirety of the compensation. However, from the viewpoint of social community, expropriation of people's homes is nothing but disintegration of a community. That is, in case a community is expropriated entirely because of a large public project, there must be measures for reconstruction of the expropriated community. Also, from the viewpoint of individuals who can no longer engage in their occupations of farming or fishing because of an expropriation measure, social measures should enable them to hold occupations elsewhere to maintain living standards at least similar to before the expropriation. In other words, there are situations where compensation for the property right alone does not guarantee continued enjoyment of former living standards of individuals. Thus, livelihood compensation is the compensation provided by a project implementer at a policy level to ensure continued enjoyment of existing living standards.
In this paper we analyze the legal theories, past rulings and current practices of livelihood compensation and present the author's views upon review. There have been numerous debates on livelihood compensation and certain common understanding has been formed. Nevertheless, there still exists a gap between the theory and the practice, as seen later, and the legal assessment on the practice is not clear. Also, new opinions on measures for livelihood appear from related rulings. These conditions point to the need for additional discussions on the subject. In the introductory chapter, we present the significance, definition and history of livelihood compensation. In Chapter Ⅱ, we examine the existing discussions on the theoretical and legal basis of livelihood compensation. Chapter Ⅲ introduces the current practices of livelihood compensation at various public corporations and government agencies of Korea. The current status of livelihood compensation in other countries is introduced in Chapter Ⅳ. Lastly, we attempt to review the issues of livelihood compensation and discuss related rulings based on the review in Chapter Ⅴ.
Livelihood compensation is a compensation system on the port

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 생활보상의 이론
• Ⅲ. 생활보상의 실제
• Ⅳ. 외국의 생활보상 제도
• Ⅴ. 생활보상의 재검토
• Ⅵ. 결론
• 참고문헌
• 〈Abstract〉

참고문헌 (Reference)

• 1 尹秀眞, "생활보상 및 간접손실보상 개념의 재검토" 한국토지공법학회 34 : 23-44, 2006
• 2 류지태, "생활보상 논의의 비판적 검토" 한국부동산연구원 15 (15): 127-152, 2005
• 3 류해웅, "생활권보상의 법리와 제도에 관한 고찰" 한국부동산연구원 15 (15): 69-98, 2005
• 4 최환용, "미국의 손실보상기준(Relocation Act)에 관한 연구; 특히 이주대책과 생활재건조치를 중심으로" 한국부동산연구원 15 (15): 25-44, 2005
• 5 류해웅, "대규모공공사업실시에 따른 생활권보상이론의 동향"
• 6 金鐵容, "開發行政法에 있어서 生活補償에 관한 考察" (1) : 1987
• 7 崔承元, "生活補償의 槪念과 憲法的 根據" 3 (3): 1998
• 8 朴秀赫, "生活補償에 관한 法的 考察"
• 9 朴坪準, "現行法上의 生活補償에 관한 考察" 27 (27): 1997
• 10 小高 剛 編, "損失補償の理論と實際"
• 11 서원우, "土地利用規制와 損失補償, 轉換期의 行政法理論" 박영사
• 12 Ulrich Battis, "Baugesetzbuch"