ScholarWorks@숙명여자대학교

초록

The concept of “public necessity” in Article 23 (3) of the Constitution plays a very important role in determining the requirements for acceptance. The concept of “public necessity” should be interpreted strictly in terms of continuance guarantee, which is the core of defense of property rights. Although the Constitutional Court interprets the concept of public necessity strictly, it is not reasonable to understand it as a separable concept consisting of public interest and public necessity. Public utility and proportionality are closely related, and proportionality is not a requirement of compulsory expropriation for public necessity, but a limitation or permissibility. To embody the concept of “public necessity” in Article 23 (3) of the Constitution, both legislative and interpreting methods should be sought. Legislation requires that individual laws clearly define the concepts of public necessity and requirement of compulsory expropriation for public necessity. In addition, the concept of public necessity is analytically interpreted more strictly than general public interest or public welfare, since it is a requirement to deprive property rights, which is one of the fundamental rights. It is therefore reasonable to interpret the concept of public necessity in Article 23 (3) of the Constitution as “a particularly significant public interest”. The requirements to judge the public interest in the expropriation process, such as project approval or land acquisition by agreement, should be considered. If the project owner is a private company, the requirement of public interest (public necessity) must be met also in the conversion of public projects.