Property Rights and the Problem of Postwar Compensation

本研究指出，制度保障的理论框架至少对财产权具有积极的作用，其原因有五个：(1)财产权不是单纯的价值保障，而是与人身自由保障有着内在密切联系的基本权利；(2)产权本质上是一种“依赖立法的权利”，对其内容、行使方式、与其他权利的协调等作出规定，由立法者掌握；(3)德国的制度保障理论坚持“保护核心区域”的思想，但作为其结构特征，它排除了对“历史和传统事物”的任何取向；(4)不仅需要保护现状（既得权利），而且需要形成与旨在确保和维护“人的尊严”的人身自由有内在联系的财产权；(5)如今，产权本身越来越依赖于国家对财产分配的社会经济政策。综上所述，本研究认为，当与个人人身自由具有内在联系的财产权实质受到侵犯时，立法者有义务不听之任之，而应采取积极的立法措施予以恢复。

This Research has then pointed out that the theoretical framework of institutional guarantee plays a positive role, at least for property rights, on following five grounds: (1) property rights are not mere guaranties of value but fundamental rights which have internal and close relation to the guaranty of personal liberty; (2) property rights are inherently "legislation-dependent rights", with regulations of their contents, of ways to exercise them, to coordinate them and other rights, and so forth, put into the hands of legislators; (3) German theories on the institutional guarantee stick to the ideas, "protection of core areas", while as their structural features they exclude any orientation toward "historical and conventional things"; (4) one requires not mere protection of status quo (vested rights), but formation of property rights which have internal relation to the personal liberty designed to ensure and preserve "human dignity"; (5) property rights as such has been more and more dependent these days on the national social and economic policies over distribution of property. From the above mentioned, this Research has concluded that, when substance of property rights which have internal relation to the personal liberty of individuals are considered to be violated, the legislators have an obligation not to leave the damage alone, but to take the positive legislative measures to recover it.