건축허가 관련 절차와 법적 쟁점 검토

It is a question of whether the freedom of construction can be recognized as a fundamental right under the Constitution of the Republic of Korea(hereinafter referred to as the Constitution) and which can be applicable provisions for constitutional bases. As the constitutional bases for it, most scholars contend right to property in Article 23 of the Constitution, but some scholars do right to pursuit happiness and right to property. It is considered that the latter is valid. The licensing(authorizations, permits and reports) process under the Building Act is characterized by multi-level administrative procedures. Legal issues related to building permits under the Building Act are as follows: first, the dual system of building permits and reports, secondly, the legal fiction of authorizations and permits, thirdly, the legal nature of building permits, fourthly, nearby-neighbors protection of building permits and reports. Firstly, several solutions have been suggested that they should solve the essential problems coming from dual system of build permits and reports under the Building Act and they can solve the problems to improve current regulatory system consisting of permits-registration-reports requiring acceptance-reports complemented by themselves, and to conclude, it has to review current regulatory systems of building systematically and totally. Secondly, the appropriation using repeatedly exceptional legal fiction of authorization- permits needs to be reviewed in depth. Thirdly, there is theory that the legal nature of the legal fiction of authorization- permits is considered to be the reports requiring acceptance, it is valid. The cases also recognized them as reports requiring acceptance. In addition, double authorization-permits legal fiction of 1st stage-legal fiction(fictive reports on the building permits) and 2nd stage-legal fiction(building permits with legal fiction of authorization-permits) have deviated from its original purpose of procedural simplification and imposed the legal force of substantive law, such as permits-fiction and authorization-permits fiction of related acts. As a result, acts imposing the legal strong force should be reconsidered legislatively. Fourthly, the preliminary dispute settlement for neighborhood protection has suggested as follows: applicability of public comments process by environmental assessment and of preliminary notice about building permits As detail rights for neighborhood protection, the right to request ban against person in the public law and right to request administrative intervention to administrative agency have reviewed. The discussion on the legal status of nearby residents related to building permits should be based on translating purpose of existing related regulations according to traditional protective norms, and headed to protection of rights for nearby residents.