Ⅰ. Background and Purpose
○ The ‘Land Compensation Legislation and Legal System’ was published as part of‘Introduction to Korean Laws’ project
○ The ‘Introduction to Korean Laws’ is translated version of Korean laws and acts in foreign languages and becomes public with an goal to enhance understanding of Korean laws by sharing the characteristics, advantages and disadvantages of Korean laws, and to lay foundation for presenting the rational criticism as well as finding improvement and development direction.
○ It centers on providing explanation on the Korean land compensation act aiming at better understanding of it for foreigners rather than providing conflicting legal theories or proof for argument.
○ What is expected is that this paper serves as a forum for discussion for analysing Korean legislation, establishing legal theories, and encouraging development of legal systems.
Ⅱ. Major Contents
□ Overview of Land Compensation Act of Korea
○ The land compensation act in Korea established standards of land expropriation and compensation for the land which is acquired or expropriated in public work projects. Under the current act, any public work project that requires acquiring or expropriating land shall not be granted by applying individual laws unless the projects follow attached tables. As of October 2017, there are around 110 provisions prescribing expropriation and use of land according to attached tables of the current land compensation act.
○ The scope of limiting exercising the right of property is determined by the social relevance and social function of objects that are subject to property rights. The more objects have the social relevance and social function of object, the more broad range of restriction is justified. In this regard, stricter restrictions and duties could be attached on the land property right that others.
○ Purposes of public works are to use, develop and protect the territory which is the bases of production and livelihood of people in an efficient manner. Compensation for losses caused by implementation of public works is a way to ensure covering of losses under principle of burden sharing.
○ The act provides that unified land price shall be applied in calculating the amount of compensation and make the land price public so as to use and manage real estate in an efficient way, set reasonable prices, rationalize tax base, and provide reasonable compensation for losses. However, unified land price functioning as tax base and standard for reasonable compensation for losses causes conflict of interest between project operators and landowners and persons concerned and falls short of expectation of both parties.
○ Opinions currently differ as to subjects of livelihood compensation. Under the land compensation act, public work project operators shall either establish and take relocation measures or pay resettlement subsidies and provide residents with compensation equivalent to expenses incurred in moving their residence and transporting movables, such as household effects. However, the act does not clearly state the term ‘compensation for livelihood.’
□ Contents of the Act
○ The Act on Acquisition of And Compensation For Land, ETC. For Public Works Projects consists of 9 Chapters and 103 Articles.
○ It provides purpose of the act, definition of terms used in the act, subjects to application, scope of public works, matters relating to preparation of public works, acquisition or use of land through consultation, land tribunal, standard and types of compensation, ways to provide compensation, filing objections, the repurchase right and so on.
□ Issues of the Land Compensation Act
○ As the scope of public works depends on administrative demand and changes in social conditions at the time of establishing a public work plan, it is required to exclude one from public project when a planed public work project is either hardly regarded as public work or is able to carry out by trading of land between.
○ Even if it is possible for a private person to be recognized as an agent of expropriating land in a principle of law, the right of expropriation should not be invested with when requirements for public interest are not met.
○ The supreme court and the constitutional court have maintained their decision that development profits should be excluded from the whole amount of compensation for losses or property. However, there is no device to claw back development profits created by soaring land price in area around the land which is acquired or expropriated for public project. The land compensation act shall include provisions on this matter.
○ Certain provisions of Korea-U.S Free Trade Agreement present not only opportunities but also challenges in implementing the land compensation act to some extent. Under the conditions, it is required to make a continuous effort to improve the current act by reviewing unclearly stated issues in the act such as subjects to compensation.
Ⅲ. Expected Effects
□ Three Significances of Introducing Korean the Land Compensation Act to the World
○ First, Korea’s experience of legislating on the land compensation act could be valuable resources to those countries which do not have any established land compensation act.
○ Second, the act provides relevant information to foreigners who consider making an investment in Korea. If a foreign private investor is selected as an operator of public works, he/she shall follow all required procedures for land acquisition or expropriation and compensation for the land. The authorities in charge of implementing a public work will provide details, but understanding of related law and legal system will be very helpful to plan and carry out the public work.
○ Lastly, the Korea act will provide significant information to scholars who conduct research on land compensation legislation and try to improve it across the nation. What could assume is that introducing the translated version of Korean land compensation act in foreign languages and exchanging opinions on merits and demerits of the act would help current land compensation to be improved further as a wide range of opinions on demerit would be collected.
1 Introduction 9
1.1 Purpose 11
1.2 Research Scope and Methods 12
2 Overview of Korea’s Land Compensation Act 15
2.1 Protection of property rights and the obligation to exercise such rights in the public
2.2 Public projects and compensation for loss 19
2.3 Publicly Announced Land Value as reference for calculation of compensation 19
2.4 Expanded scope of compensation 21
3 Contents of Act on Acquisition of And Compensation For Land, ETC. For Public Works Projects 23
3.1 Structure of the Act 25
3.1.1 Outline 25
3.2 Contents of Chapters 29
3.2.1 General Provisions and Preparations of Public Works 29
3.2.2 Acquisition or Use Through Consultation (before project approval) 31
3.2.3 Acquisition or Use by Expropriation 33
3.2.4 Land Tribunal 40
3.2.5 Compensation for Losses 41
3.2.6 Filing Objections 55
3.2.7 Repurchase Rights 57
4 What needs to be done to improve the Land Compensation Act? 61
4.1 Re-defining the scope of a public project 63
4.2 Setting limits on private taking 65
4.3 Exclusion and offset of development gains 66
4.4 Expanded compensation under the Korea-U.S. FTA 66
5 Conclusion 69