Just Compensation: Ideal or Compromise? A Comparison of the Implementation of the Just Compensation Clause and Forced Urban Evictions in China and South Korea

Author:Helen Yu
Position:J.D. 2006, University of Iowa College of Law.
Pages:190-221
SUMMARY

I Introduction - II Just Compensation: Theoretical Underpinnings and Practical Considerations - A The Theory of Just Compensation - 1 Fairness and Efficiency - 2 Just Compensation and Legitimacy - B Problems with the Concept of Just Compensation - III Legal Framework for just Compensation - A Constitutional Provisions on Just Compensation - 1 China - a) Private Property Rights- b)... (see full summary)

 
INDEX
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Page 190

    Helen Yu: I am grateful to Professors John Ohnesorge, Chen Xiaoping, and Jarrett Haskovec for their advice and comments. Also special thanks to Mary Sexton, former law librarian at the University of Iowa College of Law, who provided invaluable assistance for the research on South Korea. Last but not least, many thanks to my family, particularly my parents, mentors, and precious good friends who supported me through law school.
I Introduction

Forced eviction 1 is a problem in both developed and developing countries.2 Governments and developers often evict tenants without just Page 191 compensation or adequate notice. The numbers3 are staggering: in China, more than 1.5 million people were evicted in the past thirteen years in Beijing alone. 4 Pakistan recently underwent a massive campaign of forced evictions that could leave approximately 250,000 people homeless. 5 In South Korea, "700,000 squatters were evicted, often violently, between 1985-1988."6 In Asia, the Pacific, and the Middle East, the estimated number of evicted persons in 2001-2002 was 1,787,097.7 Page 192

Many landowners and tenants were injured during the forced evictions, and some have even died in the process.8

Despite the existence of just compensation clauses in their respective constitutions, China and South Korea have consistently failed to protect private property rights. Although the two countries have different political regimes, social expectations, economic systems, and legal traditions, the need for urban development, both perceived and actual, has given rise to forced urban evictions. In both countries, social protest movements of different scales emerged, often ending in violent clashes between evictees and the authorities. In China, some evictees even adopted extreme protest tactics, such as self-immolation.9

The social movements that emerged in response to forced evictions in China and South Korea speak to the devastating social effect of forced evictions on the evictees' livelihoods. In South Korea, the demolition of the Sang Kye Dong community rendered the whole community homeless for the summer, autumn, and winter of 1987, during which evictees had to camp in tents on the grounds of the Roman Catholic Cathedral in central Seoul. 10 In China, local governments and developers have adopted heavy-handed tactics, such as using criminals to evict people from homes.11 Governments and developers reap enormous profits from development projects while failing to provide funds for just compensation.12 Forced eviction is therefore a multifaceted problem with social, economic, and legal dimensions. Page 193

The common experience of forced evictions in the two countries presents a comparative perspective worthy of in-depth analysis. Because both international law and the domestic laws of China and South Korea recognize the evictees' entitlement to just compensation, the failure to affectively implement the Just Compensation Clause reflects attitudes toward the rule of law and constitutional supremacy. The Just Compensation Clause therefore provides a common starting point for legal comparison.

II Just Compensation: Theoretical Underpinnings and Practical Considerations
A The Theory of Just Compensation
1. Fairness and Efficiency

The main purpose of just compensation is to act as a test of fairness. 13 Between the need for urban development and the efficient allocation of resources, just compensation is one of several dimensions to social equity:14 "the purposes of just compensation are essentially two [fold]. . . 'efficiency' and 'justice'. . . . Efficiency argues for allocating resources among alternative uses in ways that maximize value; justice argues for distributing the costs and benefits resulting from particular allocations . . . that satisfy some equitable principle of rightness."15

A common way to test the fairness (and thus legitimacy) of a given social measure "is to compare [society's need] for the measure . . . with the harm it will cause to the individual or class of individuals complaining. If individual losses are found to be 'outweighed by' social &media=kt (reporting that work on the areas surrounding Chonggye Stream in Seoul is expected to create economic effects four times as large as its costs). Page 194 gains, the measure is deemed legitimate."16 Given that a social measure is legitimate, it will be efficient if "other people's (not society's) gains in some sense exceed or overshadow the admitted losses."17 Benefits are "measured by the total number of dollars which prospective gainers would be willing to pay to secure adoption, and losses are measured by the total number of dollars which prospective losers would insist on as the price of agreeing to adoption." 18 In cases of forced evictions, the evictees' interests should be balanced against the interests of people who will potentially benefit from redevelopment. Immediate beneficiaries include real estate developers who reap profits from construction, and the government, which receives tax revenue from property investment as well as benefits from the positive image for the city. Finally, intermediate beneficiaries include the people who are able to move into the new dwellings built on the demolished land; most of the time this group of intermediate beneficiaries is composed of middle to upper class residents.

2. Just Compensation and Legitimacy

The efficiency analysis determines how much developers are willing to pay for the evictees to accept the evictions as fair.19 Just compensation is a way to distribute the cost of an inevitable taking, so that it does not fall upon the few individuals who owned the expropriated land.20 It is a way to ensure fairness. Although efficiency provides a logical framework and a critical perspective for analysis, justice and fairness should be the ultimate goals of just compensation law, because low income groups lack bargaining power to mediate, negotiate, arbitrate, or enforce compensation agreements.

B Problems with the Concept of Just Compensation

Just compensation assumes that the taking is inevitable. As a result, just compensation is the only justified means to ensure fairness and efficiency. However, the discussion of forced eviction is not limited to whether just compensation was paid. Sometimes evictions can involve issues on a more fundamental level, such as whether the taking itself was inevitable. For example, South Korean peasants in Pyongtaek recently organized massive protests against forced evictions carried out Page 195 to allow the expansion of a U.S. Army base.21 Their efforts attracted international attention. Peasants in Daechuri, South Korea, evicted for the same reason, were offered a lump sum. However, because the amount was too low, farmers were unable to purchase comparable land with the compensation provided.22 In such cases, forced evictions have implications beyond the mere payment of just compensation. One such implication is that the taking may have been done with a questionable objective, and thus it was unfair and unjust.

Whether just compensation is a measure of efficiency or an idealistic vehicle for justice in the fairness principle, forced evictions are still human rights violations that cause grave physical and psychological injuries to the evictees.23 More often than not, monetary remedies do not compensate such injuries. 24 Therefore, even if a just compensation clause is fully enforced, forced evictions must also be assessed from the perspective of their social effects and the demands of due process.

III Legal Framework for just Compensation
A Constitutional Provisions on Just Compensation

The Chinese and South Korean constitutions both recognize private property rights and contain just compensation clauses.

1. China
a) Private Property Rights

Two 2004 amendments to the Constitution of the People's Republic of China (the Chinese Constitution) are relevant to forced evictions. The Page 196 first is an explicit protection of private property.25 The 1999 Amendments to the Chinese Constitution protect the right of citizens to own "earned income, savings, houses and other lawful property,"26 and "[t]he state protects by law the right of citizens to inherit private property."27 These provisions were amended to read as follows: "[t]he lawful private property of citizens may not be encroached upon," and "[t]he state protects by law the right of citizens to own private property and the right to inherit private property."28...

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