농지취득자격증명발급심사요령의 위법부당성

The Farmland Act establishes some legitimate restrictions in order to realize the constitutional principle of tillage fields, secure farmland preservation and efficient use management, and prevent illegal dumping on farmland. The system of issuance of Qualification Certificates for Acquisition of Farmland(QCAF) was introduced for the purpose of pre-monitoring, managing, and supervising whether these reasonable regulations under the Farmland Act work properly in reality of farmland transactions. “Examination Guidelines for Issuance of Qualification Certificates for Acquisition of Farmland” is an internal guideline prepared for the convenience of front-line administration in their specific implementation and application, but appropriate and reasonable revision is required as significant illegality is found both in the formal statutory rule system and in the actual content. Accordingly, this paper examines the basic provisions of the Farmland Act, and examines whether the provisions of the Enforcement Decree and Enforcement Rule based on the delegation have a legitimate basis for delegation and comply with the appropriate scope of delegation. In particular, the main purpose of this paper is to analyze, summarize and announce the illegality of the Ministry of Agriculture, Food and Rural Affairs Established Rule No. 59 “Examination Guidelines for Issuance of QCAF” The main contents are as follows. Following the introduction of Chapter 1, Chapter 2 briefly introduces the purpose of the Farmland Act, and outlines regulations and general practices related to farmland ownership restrictions and issuance of agricultural certificates. Chapter 3 focuses on individual specific cases for the convenience of understanding and specificity of discussion. First of all, I will introduce the case of the recent controversial ‘Supreme Court 2021. 8. 19. Sentence 2020du30665 decision’. In the case, FAQC was not issued, and I will point out the illegality of the disposition. Chapter 4, as the core topic of this paper, focuses on the illegality and legal effect of the Guidelines for Issuance of QCAF. First, the grounds for delegation and legal effect of enforcement ordinances and enforcement rules (directives, guidelines, and detailed regulations) are reviewed. Second, the consistent position of precedents regarding the legal and normative effect of directives, guidelines, and detailed regulations is reviewed. Third, this paper will analyze and criticize the legal and normative effects of the directives, guidelines, and detailed regulations in the Basic Administrative Act. Fourth, important Supreme Court precedents are introduced and reviewed regarding the effect of the Presidential Decree in relation to the regulations on the conversion of farmland for farmhouse sites under the Farmland Act. It is a case of canceling the disposition of non-conversion of farmland as ‘Supreme Court 2000. 10. 19. Sentencing 98du6265 enclave decision’, and the invalidity of the enforcement decree that exceeded the scope of delegation of the Farmland Act was unanimously confirmed. Fifth, the grounds for delegation and scope of delegation of the Farmland Act and the Enforcement Decree regarding the application and issuance of agricultural certificates are examined in turn, and the entrustment legislative provisions of the Enforcement Rules of the Farmland Act, which is a ministerial decree, are also analyzed and reviewed. Sixth, the illegality and invalidity of “Examination Guidelines for Issuance of QCAF”, which is an internal guideline for farmland administration practitioners under the Enforcement Regulations, is demonstrated. In particular, Article 9 Paragraph 3 of the Guidelines is naturally invalid as there is no basis for delegation in the system of laws, ordinances and rules, and there is a self-contradiction between the main text of Article 9 Paragraph 3 of the Guidelines and the contents of Paragraph 3, Subparagraph 4. It also reveals illegality and injustice in its actual content. Chapter 5, as a concluding remark, summarized the position of this paper and wrote the desire to urge improvement and revision.