用途地域制의 法的 性質에 관한 考察

Land use zoning is one of City Management Plan (CMP). There has been a debate on what is a legal nature of CMP, because CMP has both sides of legal status at the same time; a legal norm and/or an administrative act. The court has taken a stance that CMP is an administrative act, because CMP is a kind of restrictive plan which allows the government to have a administrative disposition. If CMP is an administrative act, the private rights violated by CMP can be remedied through an administrative suit for revocation. However, in the real world, the violated private right cannot be easily remedied because the government's discretionary power on CMP has been recognized very widely as a freedom of formation. The Supreme Court had decided that the government's freedom of formation shall not be an unlimited power and thus the government's discretionary power shall be deviated or abused when there are deviation, defect, or mis-calculation of profit-loss measurement of government's discretionary power. It is meaningful that the judicial precedent had adopted the academical reasoning regarding to profit-loss measurement on administrative act, defects of profit-loss measurement, and discretionary power on land use planning. Nevertheless, the judicial decision seems to have some limitations such as the court did not mention the legal basis of ordering profit-loss measurement and the definition of defects of profit-loss measurement when the court decided deviation, defect, or mis-calculation of profit-loss measurement of government's discretionary power. In the case of discretionary power on land use planning, the defects of profit-loss measurement itself can be the cause of illegal administrative act. In such a case, the administrative planning shall be invalidated or cancelled pursuant to the gravity of the defects of profit-loss measurement.