미국헌법상 수용조항 (The Takings Clause in American Constitutional Law)

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초록

Both the federal government and the states have the power of eminent domain - the authority to take private property when necessary for government activities. However, the Constitution contains an important limit on this power: The Fifth Amendment states "nor shall private property be taken for public use without just compensation." This was the first provision of the Bill of Rights to be applied to the states.
The takings clause is the most important protection of property rights in the Constitution. In part, the takings clause is about ensuring that the government does not confiscate the property of some to give it to others. In part, too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay.
Analysis under takings clause can be divided into three questions. First, is there a "taking"? There are two basic ways of finding a taking. A possessory taking occurs when the government confiscates or physically occupies property. Alternately, a regulatory taking is when government regulation leaves no reasonable economically viable use of property.
Second, if there is a taking of property, the next question becomes: Is the taking for "public use"? If the taking is not for public use, the government must give the property back. However, the Court has very broadly defined public use so that almost any taking will meet the requirement. The Court has said that a taking is for public use so long as it is "rationally related to a conceivable public purpose" - in other words, so long as it meets the rational basis test.
Third, assuming that it is a taking for public use, the final question becomes: Is "just compensation" paid ? The key is that just compensation is measured in terms of the loss to the owner; the gain to the taker is irrelevant. The Supreme Court has said that the loss should be valued in terms of the market value to the owner, as of the time of the taking. However, the government does not need to pay for any increases in the market value that occurred solely because of its plan to take the property.

영어초록

Both the federal government and the states have the power of eminent domain - the authority to take private property when necessary for government activities. However, the Constitution contains an important limit on this power: The Fifth Amendment states "nor shall private property be taken for public use without just compensation." This was the first provision of the Bill of Rights to be applied to the states.
The takings clause is the most important protection of property rights in the Constitution. In part, the takings clause is about ensuring that the government does not confiscate the property of some to give it to others. In part, too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay.
Analysis under takings clause can be divided into three questions. First, is there a "taking"? There are two basic ways of finding a taking. A possessory taking occurs when the government confiscates or physically occupies property. Alternately, a regulatory taking is when government regulation leaves no reasonable economically viable use of property.
Second, if there is a taking of property, the next question becomes: Is the taking for "public use"? If the taking is not for public use, the government must give the property back. However, the Court has very broadly defined public use so that almost any taking will meet the requirement. The Court has said that a taking is for public use so long as it is "rationally related to a conceivable public purpose" - in other words, so long as it meets the rational basis test.
Third, assuming that it is a taking for public use, the final question becomes: Is "just compensation" paid ? The key is that just compensation is measured in terms of the loss to the owner; the gain to the taker is irrelevant. The Supreme Court has said that the loss should be valued in terms of the market value to the owner, as of the time of the taking. However, the government does not need to pay for any increases in the market value that occurred solely because of its plan to take the property.

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