earticle

영어

In Koreannational law, the concept of indirect expropriation does not existed, so it is difficult to directly introduce this concept. Of course, related to the Free Trade Agreement (FTA) between Korea and United States, indirect expropriation may not directly influencing national legislation.
However, due to the restriction of government regulation,when there is damagein companies, if property rights and the principle of equality become issues between domestic enterprises and foreign companies, the indirect expropriation should be seriously considered to be introduced. Therefore, we need to theoretically approach the question of, what are the consequences of indirect expropriation if it is introduced to the national legislation rather than judge whether or not it will advantageous or disadvantageous.
In addition, if Korea forms the FTA with developed countries such as the United States, inother words, Korea approves indirect expropriation; the government's regulatory policies will be challenged. This will cause a national risk by the ISDthat cannot be ignored. Of course, for the FTAindirect expropriation controversy about the constitutionality of the constitutional fundamental is the issue that is difficult to solve if not impossible.
However, with the improvement of national legislation, this issue can be resolved to some extent. In another words, national laws need to be reconsidered such that the infringement of property rights due to excessive regulations are to be prevented beforehand, and fair compensation is made posteriorly.
Especially, since Korean citizens need to be rational and effective when they use its territory, acquiring land requires more sociality and publicity than any other property right. However, unlike the situation in Korea where land is extremely limited, the United States has largely available lands, so in the case of United States, government intervention in land use and development is relatively less. Therefore, the citizens’ basic perspectives on property right and in South Korea and the United States are different, and the respective law systems are not easily comparable, so the same standards and procedures on prevention of property rights’ violation cannot be adapted. Thus, the constitutional provisions and related institutions which bring unconstitutionality of FTA need to be amended according to the reality.
In conclusion, when FTA indirect expropriation is accurately analyzed, national laws can be positively amended. It is urgent to develop regulations to maximize national economy for the already announced FTA.