국토계획법상 토지형질변경허가와 건축허용성 — 대법원 2020. 7. 23. 선고 2019두31839 판결 —

The legal status that allows a single unit of land to build a building on the ground is referred to as development permission. Since urban planning currently operating in Korea has the limitation of not being able to completely determine and disclose development permission, it is very difficult to understand the concept and function of development permission operating in actual building regulations. As a result, confusing discussions have continued to conclude whether building permission is a binding act or a discretionary act. The Supreme Court's cases on the public law regulation of building practices have undergone a series of legal advances in terms of the perception of development permission as a key function of urban planning. Prior to the ruling in this paper, the court did not clearly recognize the concept of development permission and its decision method as an independent urban planning function that distinguished from building permits, although it had made steady legal efforts to secure space for certain discretion in the construction permit process. The ruling in this paper is said to have made significant legal progress on the legal regulation of architectural behavior by explicitly accepting the concept of development permission, which has been claimed by academia. Through the ruling in this paper, the court finally explicitly recognized the concept of development permission and recognized it separately from the building permit procedure. As a result, it opened the horizon for Systematic regulatory operations by confirming the principle that building permit can be reviewed only after judging the development permit on the site where the building permit was applied. Furthermore, based on an accurate understanding of the functions of urban planning, the gap that had not been narrowed between the practice of law and the judicial precedents was resolved. At the same time, the ruling in this paper also suggests the challenges that our court have to solve in the future. The current Supreme Court precedent on the legal nature of building permits has two opposing positions at the same time: building permits are in principle a binding act and a discretionary act. It needs to be organized into one position in the future. The fundamental cause of the problem of diverging the position of precedents is the error in legislation that the National Land Planning Act includes “Construction of buildings” as the subject of permission for development activities. Permission of characteristic transfer of land and permission of subdivision of land is a measure that grants development permission, so it is reasonable to define it as an act of development, but it is right to exclude construction of buildings from development activities.