가축사육 제한구역을 정한 조례의 효력을 다툰 판례의 동향과 시사점

One of the environmental disputes recently occurring in rural areas is the dispute between the one who plans to build a new livestock pen and the nearby residents. However, the dispute often appears, not as a civil procedure, but as an administrative litigation about a construction permission. The issue of the appeal is often about the force of the municipal ordinance stipulating the livestock-raising restriction zones (hereinafter referred to as ‘the Ordinance’) according to the delegation by the Act on the Management and Use of Livestock Excreta (hereinafter referred to as ‘the Livestock Excreta Act’). The heads of municipal governments and the members of the local assemblies, who are concerned about the election under the municipality system, tend to extend the livestock-raising restriction zones. Therefore, those who want to build a new livestock pen often make file an administrative litigation about the force of the Ordinance. In this background, the Supreme Court recently made several decisions concerning the force of the Ordinance. The decisions concerning the force of the Ordinance are classified into those about whether the Ordinance may be comprehensively re-delegated to notices or others, those about whether a topographical drawing notice according to the Framework Act on the Regulation of Land Use is required of the designation of the livestock-raising restriction zones according to the Livestock Excreta Act to be effective, and those about whether the Ordinance complies with the scope of the delegation according to the Livestock Excreta Act. About whether the Ordinance may be comprehensively re-delegated to notices or others, the Supreme Court found that, although being abstract, the delegation of the Livestock Excreta Act is possible, because the delegation has a specific scope. On the other hand, about whether a topographical drawing notice according to the Framework Act on the Regulation of Land Use is required, the Supreme Court found that a force is not generated in the absence of the notice. Finally, about whether the Ordinance complies with the scope of the delegation according to the Livestock Excreta Act, the Supreme Court found that the scope of delegation has not been out of the scope of delegation except the cases where the delegation may not be included in the abstract scope of delegation according to the Livestock Excreta Act. However, in relation to the Supreme Court decision about whether the Ordinance complies with the scope of the delegation according to the Livestock Excreta Act, many lower instances found that the Ordinance is not effective. While the Supreme Court found that the force of an ordinance should not be recklessly denied in order to respect the administrative authority, the lower instances found that the scope of delegation has clearly been transgressed. The Supreme Court may not be blamed because, if a specific standard is provided by the Court, the jurisdiction may replace the legislation. However, due to the need to resolve the real disputes, a legislative solution is necessary. Specifically, the scope of delegation needs to be specified more specifically by setting an upper limit of the distance restriction according to the Livestock Excreta Act. In addition, it will be reasonable that a small-scale environmental impact assessment should be made compulsory for a livestock pen, and the one who has the permission authority should be obligated to follow the consulted opinion of the Minister of Environment unless there is a significant reason for objection.