“Public necessity” provided in Constitution §23 ③ as a Legal requirement for
Expropriation against property right shall be interpreted and applied more strictly
than “Public welfare” provided in Constitution §37 ② as a general restricting
provision of citizen’s right. The later includes the former, but the contrary is not
true. To discuss the above in detail, “Public necessity” means to serve the
public use exceeding the social restrict inside the property right from beginning
to end of the planned development program.
In other words, anyone, whether he is pubilc or private entity, can be chosen
to menage the planned development project and given an authority to expropriate
the property right including lands by the public power as far as the project
serves public welfare. And the words “the project serve public welfare” means
that it serves and will serve the public use after having done the development,
otherwise there is no demand for public use when the public power decide the
plan or the developing result does not supply for the public use.
To make it conclude as follows:
First, Our Constitution §23 ③ allows not only the public power but also the
private to be chosen to menage the planned development project with an
authority to expropriate.
Second, “Public necessity” as the key requirement for Expropriation is
composed the public and the necessity. The former implies ‘public use’, ‘use for
public’, ‘use by public’ or ‘serve the welfare’. The later involves ‘proportional principle’, ‘the minimum scope of expropriation’ and additionally ‘the consistency
principle of publicity’.
Finally, a profit-making corporation without having any authority over the
property supposed to expropriate can be also an agent of expropriation so far as
to meet the public necessity throughout the whole expropriation business, even
though the corporation exercise the above power to attain his own goal.