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공법연구 , 2008년, pp.31 - 53  
본 등재정보는 저널의 등재정보를 참고하여 보여주는 베타서비스로 정확한 논문의 등재여부는 등재기관에 확인하시기 바랍니다.

법률의 개정과 재산권의 변동
Revision of Law and Change of Property Right

김대웅 
  • 초록

    The law goes through birth (enactment), growth (revision), to death (abrogation). The revision of the law affects the property right of the people. Once the law is revised, the issue is to decide which law shall be applied for a trial, the pre-revision law or the post-revision law. And the following issue is whether to hold the efficacy of the pre-revision law after the revision. The first issue is closely related to the meaning of the law revision.The revision of the law can be classified into the partial and the general revision. If the revision of articles in the law accounts for over 2/3 in total, it is stated as the general revision. And if it is less than 2/3, it is as the partial revision. Therefore, the general revision is not the changes of all articles in the law. The classification shows only quantitative difference, not qualitative. There is an opinion that once the law is partially revised, the whole of law should be regarded as completely new one. However, it is rational to point out that the post-revision law shall not replace the pre-revision law. Rather, since the pre-revision law and the law to revise it are separate, the part of old law which is not under the revision shall not be affected by the revision. In the strict sense, as the part of law not within the scope of the revision cannot be classified into pre- and post-revision law or old- and new-law, it continues to effectuate as it has been. In case where the post-revision law institutes a transitional provision, it determines the continuance of efficacy of the pre-revision law. When there is no such transitional provision, the interpretation of the law determines whether or not to continue the efficacy of the pre-revision law. It is agreed that when the monetary claim is filed for the unconstitutionality of excessive restriction on property right, the restriction article without compensation on the property right is well recognized to be prerequisite to a trial. However, opinions are divided into the case where the property act is revised to include new article of redemption measures (ex. right to request purchase) after the administrative authorities issued a disposition (ex. disposition of development restriction zone i.e. green belt) pursuant to the restriction article of the property act, and the person who is rendered of the restriction order files a monetary claim on the ground of unconstitutionality of the restriction article on the property right which is not within the scope of revision. In this case, some argues that the restriction article of the pre-revision act shall be prerequisite to a trial, while others insist on that of the post-revision act be prerequisite to. But given that the restriction article of the property act continues to exist without revision as it has been, it is deemed to be inappropriate to classify pre-revision act and post-revision act for the unrevised restriction article. Provided, however, that the restriction article should be differentiated between pre-revision and post-revision by the revision, it is deemed to be rational that the restriction article of the pre-revision act is prerequisite to a trial.


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