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초록· 키워드
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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 portion of one's right not covered by compensation for property rights. Livelihood compensation plays an important role in public projects. Current status of livelihood compensation in Korea is judged to be at a mature level thanks to accumulated practical achievements in the area. However, a number of problems still occur from certain lack of legal systems on livelihood compensation. Such problems include lack of predictability on the content of livelihood compensation, imbalance of livelihood compensation details among project implementers, and the trend of excessive demands for livelihood compensation.
Components of livelihood compensation include relocation subsidy, priority hiring and employment service, and income assistance measures. These components of livelihood compensation do not have the same legal implications. For example, where the demand for relocation measures may be justified, associated moving expense subsidies can differ by project implementer. Here, the right to demand a moving expense support is recognized because its non-support violates the current legal requirement. Income assistance measures are very much of good-will nature for facilitation of a public project. Therefore, at present, not all components of livelihood compensation can be viewed as rightfully justified compensations for the property right from the legal standpoint and the practical viewpoint.
From our comparative review of legal systems, other countries have not instituted livelihood compensation systems as an integrated system. However, the functional effects of livelihood compensation are achieved through diverse compensation practices. We can learn much from the procedures and methods of other countries, which are considerate sufficiently to ensure that existing business owners and lessees do not have to bear extra social burdens as they go through an appropriation procedure for a public project. We need to refine the details of our operating methods so that, while certain components of livelihood compensation are accommodated as rightful compensation items, other components are implemented as socio-political measures.
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 portion of one's right not covered by compensation for property rights. Livelihood compensation plays an important role in public projects. Current status of livelihood compensation in Korea is judged to be at a mature level thanks to accumulated practical achievements in the area. However, a number of problems still occur from certain lack of legal systems on livelihood compensation. Such problems include lack of predictability on the content of livelihood compensation, imbalance of livelihood compensation details among project implementers, and the trend of excessive demands for livelihood compensation.
Components of livelihood compensation include relocation subsidy, priority hiring and employment service, and income assistance measures. These components of livelihood compensation do not have the same legal implications. For example, where the demand for relocation measures may be justified, associated moving expense subsidies can differ by project implementer. Here, the right to demand a moving expense support is recognized because its non-support violates the current legal requirement. Income assistance measures are very much of good-will nature for facilitation of a public project. Therefore, at present, not all components of livelihood compensation can be viewed as rightfully justified compensations for the property right from the legal standpoint and the practical viewpoint.
From our comparative review of legal systems, other countries have not instituted livelihood compensation systems as an integrated system. However, the functional effects of livelihood compensation are achieved through diverse compensation practices. We can learn much from the procedures and methods of other countries, which are considerate sufficiently to ensure that existing business owners and lessees do not have to bear extra social burdens as they go through an appropriation procedure for a public project. We need to refine the details of our operating methods so that, while certain components of livelihood compensation are accommodated as rightful compensation items, other components are implemented as socio-political measures.
목차
Ⅰ. 서론
Ⅱ. 생활보상의 이론
Ⅲ. 생활보상의 실제
Ⅳ. 외국의 생활보상 제도
Ⅴ. 생활보상의 재검토
Ⅵ. 결론
참고문헌
〈Abstract〉
참고문헌 (12)
참고문헌 신청
1. [학술지(정기간행물)] - 金鐵容 / 1987 / 開發行政法에 있어서 生活補償에 관한 考察 / 부동산법학 (1)
2. [학술지(정기간행물)] - 류지태 / 2005 / 생활보상 논의의 비판적 검토 / 부동산연구 15 (2) : 127 ~ 152
3. [학술지(정기간행물)] - 류해웅 / 2005 / 생활권보상의 법리와 제도에 관한 고찰 / 부동산연구 15 (1) : 69 ~ 98
4. [기타자료] - 류해웅 / 1986 / 대규모공공사업실시에 따른 생활권보상이론의 동향 / 국토연구
5. [기타자료] - 朴秀赫 / 2002 / 生活補償에 관한 法的 考察 / 晴潭 崔松和 교수 화갑기념 논문집 현대공법학의 과제
2. [학술지(정기간행물)] - 류지태 / 2005 / 생활보상 논의의 비판적 검토 / 부동산연구 15 (2) : 127 ~ 152
3. [학술지(정기간행물)] - 류해웅 / 2005 / 생활권보상의 법리와 제도에 관한 고찰 / 부동산연구 15 (1) : 69 ~ 98
4. [기타자료] - 류해웅 / 1986 / 대규모공공사업실시에 따른 생활권보상이론의 동향 / 국토연구
5. [기타자료] - 朴秀赫 / 2002 / 生活補償에 관한 法的 考察 / 晴潭 崔松和 교수 화갑기념 논문집 현대공법학의 과제
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