건축법령상 일조규제의 문제점 -입법재량의 남용과 입법론을 중심으로-

There are wide differences between the definition of the right to enjoy sunshine which has been shaped by court and the building permitting criteria on enjoying sunshine prescribed at the present building permitting code. For example the one says the hours of enjoying sunshine, but the other prescribes the building permitting criteria on enjoying sunshine by the spatial definition of 'height' and 'distance'. The sunshine conflicts for sunshine interests have the characters of ‘zero sum game'. Thus the essential function of the criteria of permitting building in concern with sunshine is the reasonable distribution of sunshine interests. From the above differences, the function of sunshine distribution through the existing building code is being carried out in a very restricted degree. The difference between the two leads to what we call 'sunshine conflicts'. It is true that the two criteria on deciding whether hurting the right of enjoying sunshine or not don't go with each other in a degree of being almost irrelevant to each other. But the above circumstances don't guarantee the rightness of the establishment of the building permitting criteria on enjoying sunshine. There is no special political reason for public interests to establish the building permitting criteria on enjoying sunshine in such way. The above present criteria by building permitting code violates Article 10 of the Constitutional Law writing 'The state should protect people's basic human rights.' And it is what we call the legistlation out of the proper discretion in legistlation. And it violates the national duty of protecting the basic human rights. Thus the legistlation in that way doesn't go with the constitutional law in that meaning. To cope with the above situation of sunshine conflicts, the above present criteria on building permitting code should be corrected according to the standard criteria on enjoying sunshine by civil court. The constitutional law demands that. The theory of relation between 'public law' and 'private law' which has long been discussed should not only focus on the theory of their native nature, but also on the theory of correspondent functions of theirs. In conclusion, this problem, in one hand, is the matter of discretion in legistlation of 'public law' and 'private law' and in the other hand is the matter of the national duty of protecting the basic human rights. That is to say, the two are inseparable as is the case with a coin's upside and downside. If so, this is a constitutional dispute to be treated in the dimension of constitutional law. But there have been little disputes in constitutional law. And at the same time this is a matter of relation between 'public law' and 'private law' in the dimension of administrative law. The two is as is the case with a coin's upside and downside.