정비사업의 구조이론(構造理論)과 동의(同意)의 평가

In 2009, the Supreme court ruling showed that improvement project cases should not be within the jurisdiction of the civil court, but the administrative court. Accordingly, it is needed to reconsider the meaning and the function of consent in improvement project. Considering that the entire system of improvement project is related to the factors such as ownership of the lands, partnership structure, administrative disposition factor, etc., this article offers a standard to explain the relationships between the factors and the entire system, which will be called "structure theory of improvement project". Structure theory will help to improve legal and administrative system for improvement project, to provide judges a guideline to find the meaning of the relevant provisions, and to understand practical issues in the field. Three main factors of structure theory are as follows. First, as to ownership of the lands, some type of project is designed to require project implementer to obtain ownership of the lands, which will be called "distributional type". The other type also exists, and will be called "non-distributional type". Secondly, in administrative disposition aspect, whether the process of the project is mainly run by the administrative dispositions or the articles of the association is also an important factor. Lastly, concerning the structure of partnership of the project, there are two types; closed shop or union shop. Application of structure theory helps evaluation of consent in improvement project. First, consent should be construed as a requirement for an administrative agency to make a disposition. Secondly, the legality of improvement project can be controlled by revocation litigation, and the civil litigation should not be easily allowed for improvement project cases. Thirdly, regarding that application for parcelling-out is designed for convenience of project implementer, and has limited meaning for partnership members, it doesn't mean that the members can withdraw the partnership, who fail to file an application for parcelling-out.