Construction & Urban Development Law Association最新文献

{"title":"Scope and exceptions to acceptance Adjudication Prior to Compensation","authors":"Jun Seob Shin","doi":"10.12972/cudla.20230010","DOIUrl":"https://doi.org/10.12972/cudla.20230010","url":null,"abstract":"The Supreme Court has ruled that compensation for land acquisition and for public projects under the Act on Acquisition and Compensation of Land for Public Works Projects must be adjudicated by the Land Tribunal. It has been determined that compensation claimants cannot directly claim compensation from the project operator without following the adjudication process. This rationale, known as the principle of “adjudication prior to compensation” has been gradually extended to areas such as business compensation, agricultural compensation, as well as compensation for livelihoods. At the same time, the Supreme Court has indicated that for compensation items such as relocation expenses and moving costs within the category of compensation for livelihoods, the principle of adjudication prior to compensation does not apply. This implies that affected parties can directly claim compensation through individual lawsuits without waiting for the Land Tribunal's adjudication, or the project operator can proceed with compensation according to the Land Compensation Act. When comparing the legal nature of compensation categories such as business compensation and agricultural compensation, where the principle of adjudication prior to compensation applies, with categories such as relocation expenses and moving costs, it becomes evident that they all fall under indirect compensation for livelihoods. There is little relevance between the application of the principle of reconsideration prior to compensation and the issue of whether appraisal is required for compensation. This clarifies that the scope of application of the principle of adjudication prior to compensation is determined not by the legal nature or characteristics of compensation categories, but by the Supreme Court's judgment aimed at resolving fundamental inconsistencies between the land compensation system and the practice to achieve concrete validity. Based on the Supreme Court's principle of adjudication prior to compensation, to unify the compensation process for all land compensation categories, including items such as relocation expenses, it becomes necessary to interpret the scope of “adjudication” more expansively within the principle of adjudication prior to compensation. This may involve interpreting Article 50, Paragraph 1, Subparagraph 2 of the Land Compensation Act to allow the Land Tribunal to make increased adjudication for “loss compensation,” even without individual applications for adjudication, to account for items such as relocation expenses. However, this would still necessitate changing existing practical norms and procedures. Considering these points, the Supreme Court's principle of adjudication prior to compensation appears to be applicable only in specific circumstances, and extending it to the entire land compensation process seems impractical.","PeriodicalId":479735,"journal":{"name":"Construction & Urban Development Law Association","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135770961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Book of the Land for Project Cost as a Method of the Notice Principle, and its Impact on the Acquisition of the Ownership of the Land for Project Cost - A counter-plan to Supreme Court Decision 2018Do13604, Decided October 14, 2022","authors":"Hyun-Jeong Yu","doi":"10.12972/cudla.20230009","DOIUrl":"https://doi.org/10.12972/cudla.20230009","url":null,"abstract":"Recently, the Supreme Court of Korea reached a decision under the Urban Development Act, stating that the purchaser of “Chebiji,” also known as the “Land for Project Cost,” is regarded as a creditor until ownership acquisition through registration from the project operator. This decision marks a departure from the previous notion that the rights obtained by recording the purchaser’s name on the “Chebiji Daejang,” or “Book of the Land for Project Cost” were akin to property rights, following the precedent set by the formal Land Readjustment Project Act. Conversely, the Korean Trust Law and its Enforcement Decree are the sole legislative instruments that address the Book of the Land for Project Cost. The Korean Trust Law permits a specific type of property, classified as trust property, to contest against a third party if this fact is duly indicated in a book stipulated by Enforcement Decree. Notably, the Enforcement Decree includes the Book of the Land for Project Cost. However, the act of designating it as trust property holds no practical value for the purchaser prior to gaining full ownership of the land. Consequently, there exists a risk wherein the Project Operator could engage in double-selling of the Land for Project Cost, thereby diminishing the value of the land itself. While avenues such as seeking injunctions or proposing amendments to the rules of the Urban Development Association may offer mitigation measures, they do not provide a comprehensive solution. This is because they fail to prevent third parties from attaining ownership. Considering the original legislative intent behind the Land in the Urban Development Act, a revision of Article 42 (5) of the Urban Development Act becomes imperative.","PeriodicalId":479735,"journal":{"name":"Construction & Urban Development Law Association","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative Analysis of Exceptions to Planning in the U.S. and South Korea","authors":"Jinwon Jeon","doi":"10.12972/cudla.20230007","DOIUrl":"https://doi.org/10.12972/cudla.20230007","url":null,"abstract":"Urban planning involves determining in advance the developmental requirements for a specific geographic area. In this regard, the functions of Korea's urban management plan—especially, the special purpose area—and the U.S. zoning are comparable. However, it is debatable whether the special purpose area and zoning can be comprehended at the same—or comparable—level. Additionally, their mutual differences can be studied from the marginal aspect of both institutions, that is, the admissibility of exceptions to the existing plan and the means and procedures for allowing exceptions. In short, zoning in the U.S. can permit exceptions to application through variance or special permit for individual cases even if the contents of zoning itself are not modified. However, In Korea, it is impossible to grant these exceptions through individual administrative procedure without the procedure for modification and change in the urban management plan itself. Examining the contexts in which each system is situated in both countries explains this difference. As a “safety valve” to ensure the legitimacy of zoning, which is an intervention and limitation on property rights in the U.S., exceptional measures, such as variance and special permit, are necessary. From this protective viewpoint, it is also possible to infer the reason for the generous practice of the grant of variance. Additionally, the essence of variance or special permit must be comprehended through a comprehensive approach to the U.S. context in terms of the distribution of planning authority, standards for judicial review, and participatory factors. In this regard, it can be inferred that the need for exceptional measures similar to those in the U.S. was relatively less in Korea, where the protection of property rights is relatively weaker and urban management plans are acknowledged to have significant binding power.","PeriodicalId":479735,"journal":{"name":"Construction & Urban Development Law Association","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771102","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparison between Council of Occupants’ Representatives and Managing Body","authors":"Sooho Jeong","doi":"10.12972/cudla.20230008","DOIUrl":"https://doi.org/10.12972/cudla.20230008","url":null,"abstract":"There are two perspectives regarding the right to manage an apartment complex. First, the management right of an apartment complex can be derived by collecting all divided ownership rights as an apartment building (a civil approach). Second, the power of the community or the state is partially divided and handed over to the apartment complex (public law approach). The Act on Ownership and Management of Condominium Buildings is a civil approach to the management of collective buildings. It addresses the issue of management of collective buildings as a concept corresponding to the authority of ownership. In this case, the managing body of the collective buildings becomes a management group comprising all the divided owners. In contrast, the Multi-Family Housing Management Act views the management of apartments as public law, considering that the government's right to manage apartments is entrusted to the council of occupants' representatives. Regarding the legal nature of the management group, there is a view that the management group has a cooperative nature. However, this group has rules and an organization, such as having a representative who is a decision-making body and an executive body. It is reasonable to identify it as an unincorporated association, in that it belongs to the management group. Regarding the legal nature of the council of occupants' representatives, there is a perspective that the council of occupants' representatives is the same as the management group, or it is merely an executive body of the management group. It is difficult to see that it is reasonable to compare the council of occupants' representatives, which is an organization with a strong character, on the same line. Considering the fact that the management authority of the council of occupants' representatives is only established under the Multi-Family Housing Management Act, it is reasonable to consider that the council of occupants' representatives corresponds to a representative organization created by representatives of occupants in a small group called a housing complex. The problem of claiming management expenses in arrears against a specific successor can be resolved by identifying the legal nature of management expenses of the management group and the council of occupants' representatives. Under the Act on Ownership and Management of Condominium Buildings, the right to collect management fees exercised by the management group corresponds to the claim of co-owners based on Article 266 of the Civil Act. Additionally, Article 18 of the Act on Ownership and Management of Condominium Buildings stipulates that the claim that a co-owner has against another co-owner in relation to a common part can be exercised against the special successor. One can claim payment of the management fee corresponding to the common part of the management fee in arrears. In contrast, the right to collect management fees exercised by the council of occupants' representatives under the M","PeriodicalId":479735,"journal":{"name":"Construction & Urban Development Law Association","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135770318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Recently Announced Plans for Urban Planning Innovation by the Ministry of Land, Infrastructure, and Transport","authors":"Jae Hoon Lee","doi":"10.12972/cudla.20230006","DOIUrl":"https://doi.org/10.12972/cudla.20230006","url":null,"abstract":"The current zoning system involves stringent categorization of land use, mostly for residence, commerce, and industry. Additionally, it determines the type, building coverage ratio, and floor area ratio of a building according to categories, thus restricting land utilization. Recently, the Ministry of Land, Infrastructure, and Transport announced the “Plans for Urban Planning Innovation.” It mainly increases the autonomy of spaces by introducing urban innovation zones, complex use zones, and mixed use zones for urban planning facilities to mitigate space regulations. First, the urban innovation zones are designated to develop creativity and innovation in urban spaces. These zones fully reorganize the current minimum site regulation zones and facilitate free space utilizations. This is because there is no application of permissible building, building coverage ratio, and floor area ratio regulations according to the zoning system. Additionally, there are few limitations on the zoning and planning contents. Those who make a proposal to designate and plan an urban innovation zone can obtain the business enforcement qualification based on the Urban Development Act to vitalize private participation. Next, the complex use zones aim to create spaces featuring the convergence of various urban functions including residence, commerce, industry, education, culture, and medicine. Such zones can accommodate diverse facilities merely through zone designation without a complex procedure to change land use and increase building coverage ratio and floor area ratio up to the legal maximum limit for a given use. Third, the mixed use zones for urban planning facilities alleviate the restrictions on buildings, building coverage ratios, and floor area ratios at an urban planning facility site for the advanced and complex functions of urban planning facilities. Such zones facilitate non-urban planning facilities and alleviate the building coverage ratio and floor area ratio two-fold. Finally, the urban innovation zones and complex use zones of the three new zone types are designated through a space restructuring plan, which is a regulation covering special cases based on the old urban planning procedure. Although it changes both the basic urban and country plan and the urban and county management plan, it disappears after the determination and announcement of an urban restructuring plan. Development gains from the designation of urban innovation zones, complex use zones, and mixed use zones for urban planning facilities will be redeemed by the obligatory installation of public facilities based on Article 52, Clause 2 of the National Land Planning Act.","PeriodicalId":479735,"journal":{"name":"Construction & Urban Development Law Association","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135770962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}