개발제한제 도시계획과 보전부담금제도의 법적 쟁점 고찰

In principle, development activities are restricted within the development restriction zones. And construction of buildings is permitted only in exceptional cases which not against the purpose of designation of the development restriction zones. Even if it is permitted, the charges for preservation is imposed in order to prevent reckless occupation by utilizing low land prices, and secure business resources such as maintenance of the area and support for residents. However, the existing charges for preservation system in current law has been shown its irrationality in legal regulations on design and its operation. First, the Act on Special Measures for Designation and Management of Development Restriction Zones(hereinafter referred to as the “Greenbelt Act”) equally governs buildings and structures in terms of behavioral restrictions and exceptional permits. However, both subjects are specifically distinguished from the charge and standard of charges for preservation. Since the criteria for the distinction is unclear, it is necessary to clarify it in the interpretation. In addition, as the floor area is excluded from the calculation of the charges for preservation of the structures, it is reasonable that a certain portion of the charges for preservation is imposed.Second, the Greenbelt Act generally restricts the building activities, but the scope of the building activities includes the new construction or the extension, alteration, reconstruction, or relocation of an existing building. The Greenbelt Act specifically distinguishes the new construction and the expansion and reconstruction activities. However it does not provide detailed regulation in the reconstruction of infrastructure, so the gap of discipline is generated. In other words, although the floor area should be excluded in the case of reconstruction in the criteria for calculating the charges for preservation, there is no such provision. Therefore, the reconstruction of the infrastructure is in danger of imposing double charges. Especially, the provisions of the current law imposing the charges for preservation in the case of modernization and indoorization of the aged infrastructure in order to protect the existing facilities, need to be improved. Third, the Greenbelt Act interlinks the object of the preservation charge with the exceptional permissible object. This seems to be reasonable, as it exceptionally imposes charges on what is allowed within the zone. However, there is a substantial difference in imposing the charges for preservation, since the purpose of the permission and the charges for preservation are different. Therefore, it is necessary to establish a system of the object to be imposed independently in accordance with the purpose of the charges for preservation, and improve it legally to eliminate the substantial unfairness. In addition, there is a need to establish detailed standard for a basis for providing practical evaluation criteria.