빈집정비사업에 대한 공법적 검토

Abstract

The recent issues of population decline due to aging and low birth rates have led to an increase in unoccupied houses. This increase is associated with higher crime rates, deteriorating residential environments, urban slums, imbalances in the real estate market, and environmental problems. The necessity of unoccupied house improvement has been raised, yet public law reviews on this matter remain insufficient. The concept of unoccupied houses includes both usable and unusable houses, which vary according to the investigation period and methods. Demolition targets include unusable unoccupied houses classified as Grade 3 under the ｢ACT ON SPECIAL CASES CONCERNING UNOCCUPIED HOUSE OR SMALL-SCALE HOUSING IMPROVEMENT｣ or as ‘specific unoccupied houses’ under the ｢AGRICULTURAL AND FISHING VILLAGES IMPROVEMENT ACT｣. The constitutional basis for the demolition of unoccupied houses includes the state's coordination and intervention duties under the principle of the social state, Article 122 of the Constitution, and the housing rights of neighbor of unoccupied houses. Especially, the conflict between the housing rights of neighbor and the property rights of unoccupied house owners(conflicts between fundamental rights) is transformed into a constitutional review issue as the legislator introduced a demolition system that limits the property rights of unoccupied house owners. The most important perspective in the constitutional review is adherence to the principle of proportionality, and demolition and compensation must be carried out under stricter standards, shifting from ensuring the existence of property rights to guaranteeing their value. The management and improvement obligations of unoccupied house owners are specified in the ｢AGRICULTURAL AND FISHING VILLAGES IMPROVEMENT ACT｣ but not in the ｢ACT ON SPECIAL CASES CONCERNING UNOCCUPIED HOUSE OR SMALL-SCALE HOUSING IMPROVEMENT｣. Based on the constitutional duty of property rights for public welfare and social constraints, owners may bear police responsibilities under public law, but this needs to be explicitly stated in the law. Such regulations on the responsibilities of unoccupied house owners can serve as the legal basis for enforcement fines and potentially a future unoccupied house tax when demolition orders are issued. Local governments' ex officio demolition of unoccupied houses is deemed an administrative execution. However, demolition orders for unoccupied houses are only feasible in cases involving substantial illegality, such as when legal buildings are abandoned for extended periods, resulting in significant harm to residents. In this context, recognizing the process of becoming substantially illegal should be strictly judged under the principle of proportionality. Compensation for the demolition of unoccupied houses is challenging to include in traditional public law compensation, thus falling under special public loss compensation recognized by the legislature through special laws. The compensation amount for demolition is determined as the arithmetic average of the amounts appraised by two appraisers. Issues concerning offsetting demolition costs highlight that compensation amounts can vary between voluntary demolition and enforced demolition by administrative execution, necessitating objective standards for demolition costs offset by administrative authorities.