토지이용계획의 수립․결정과정에서 주민참여절차의 의의와 과제

The strong objection by related residents had been social issues: i.e., those issues are against various land development plan based on environmental problem or an invasion of local living rights, like recent governmental projects such as plan of maintenance of four rivers, Gangjung naval base in Jeju Island and etc. Furthermore, they had provoked lawsuits and they had costed gigantic national, social conflict. Violent objection and disputes against public plan of operation had been caused since there is no definite procedure of administrative plan in legal system to correspond to those causes: administration’s position, protection of right of interested persons and the process of interest mediation among citizen in the process of an establishment and decision of plan. Based on the critical mind the above, this thesis proves the critical point of plan control by traditional theory of administrative laws based on present laws related to land utilization plan and deals with a way to seek the possibility to practically establish the procedure of resident participation in the land utilization plan, and the subject of solution in the future. The ingredients of legal issues in the procedure of resident participation are the followings, analyzed and reviewed through this research. First of all, legislation control against administrative plan like land utilization plan must be weaken because of professionalism of plan.  Judicature control also has limitation. According to theory and case laws, in the case of binding plan, a theory of judiciary review to adopt a principle of an order to balance as substantial standard to judge illegality of concerned plan has been established on the assumption that the court acknowledges large planning discretion and it affirms the nature of disposal of plan. However, according to the analysis on the related case laws, there was no precess to review specific review of balance. Besides, the control of planning discretion still has limitation since there is no definite difference from the theory of abuse of discretion. Here, if laws on plan concentrated on substantial laws could be converted to it concentrated on procedural law, legislative, judicature control may be comparatively easy. As a result, it guarantees the nature of public of plan, established and decided by the Administration. Next, according to the structural understanding of planning laws the above, this thesis focuses on the several points related to the procedure of residents participation as the core of planning procedure. First, residents participation in the side of ideology is different from the ordinary administrative laws of procedure as the preliminary procedure to protect rights. It tied to protection of interest on the right of property owners around concerned planning area. However, group’s interest of a living right of residents is important. Thus, its constitutional ground based on both faces: due process (a theory of right protection) and a theory of national sovereignty and residents autonomy (a theory of democracy). Consequently, in the analysis and maintenance of the procedure of residents participation of planning laws, protecting the status of residents as democratic, preliminary procedure is important in the future. Second, as a structure to regulate a public hearing and hearing on the opinion of resident is not enough for reflection of resident’s opinion, the right owner to establish plan needs to execute the present system to participate not just as a formal system, but a practical, efficient system such as every procedure the same as public hearing. Third, like case laws related to legal analysis on the procedure of residents participation of the court, the court would not judge whether it is violation of laws by the standard to assure the form of procedure, but, like Japanese case laws on the public hearing and the procedure of the submission of the opinion, it may turn to judge whether it is violation of laws by whether it meets the essence and substance of residents’ participation. Fourth, it needs to improve legislation to come to meet the constitutional valuation. It could supplement a flaw of the present planning procedure supplement with a possibility of execution of various procedure of participation as a voluntary, realistic procedure. It could supplement the problem of one batch of participation’s procedure as a future subject with the alternatives on the continual, multilevel structure of participation like two level procedure of the Germany code on a federation construction. It also needs to review the disclosure of information on the participation’s procedure and the direction to transfer into autonomy affairs. Finally, resident participation is a direction of our time, discussed as a way to innovate the entire administration in the twenty-first century. In the reference to our reality where development administration still mainly consists of national economy, active introduction of competency and energy of residents (citizen) in the administration could be the only way to coordinate various conflicts in the land plan administration and assure the public interest of plan.