비오톱 1등급 토지 보전을 규정한 서울특별시 도시계획조례와 관련된 공법적 쟁송에 대한 검토

Types of claims including lawsuit brought by individuals who prohibited them from developing their properties due to the 1st grade Biotope became varied, because the concept of “Administrative Disposition” was complicated and the passive judgements made by the constitutional appeal, and etc.. The administrative claims have in general two types, such as the constitutional appeal and administrative lawsuit. The former was mostly the constitutional appeal on the 1st grade biotope Ordinance itself or the Designated Notice regarding 1st grade biotope; and the latter was mostly lawsuit for confirming invalidity of Designated Notice on the 1st grade biotope. The Constitutional Court ruled “rejection” on the constitutional appeal based on Article 68 (1) of the Constitutional Act, due to lapse of time in filing a claim regarding the 1st grade biotope Ordinance and Designated Notice on the 1st grade biotope. With respect to the lawsuit for confirming invalidity of Designated Notice on the 1st grade biotope, the Seoul Administrative Court decided that the 1st grade biotope Ordinance was the administrative disposition combined with the Designated Notice on the 1st grade biotope. However, the Seoul High Court decided that the Designated Notice on the 1st grade biotope was the administrative disposition, while the 1st grade biotope Ordinance was not the administrative disposition, but the losing party, plaintiff, did not appeal and the High Court’s judgement was confirmed and finalized. But the Constitutional Court should have not decided based on lapse of time only which is seemingly easy to determine. The 1st grade biotope is not a one-time disputing matter and it is an issue that influences to society. Depending on legal nature of the Ordinance, it should be determined whether the Ordinance is subject to the Constitutional appeal or not. The Constitutional Court should have made decision on the constitutional appeal on the 1st grade biotope Ordinance or the Designated Notice of the 1st grade biotope from the individual’s remedy aspect taking legal nature of such Ordinance and Designated Notice as well as limited period of filing claim or lawsuit into consideration. And with respect to the administrative lawsuit regarding the 1st grade biotope, unlike the Administrative Court, the High Court decided that the Designated Notice of the 1st grade biotope has the administrative disposition even though the 1st grade biotope Ordinance has no administrative disposition. The cause of such ambiguous guide is the Court has been broadening the concept of ‘nature of disposition’ by viewing ‘legal relation directly determined by law (jik-jeop-gyu-ryul-sung in Korean)’ or ‘targeted legal relation by law (teuk-jung-sung in Korean)’ as an element of the ‘nature of disposition’ through the cases, such as ‘Du-mil-bun-gyo-pyu-ji’ and ‘Yak-ga-go-si’. All things including nature of administrative disposition and meaning of the 1st grade biotope Ordinance and mandatory preservation considered, the 1st grade biotope Ordinance is “administrative disposition”. With respect to unconstitutionality, unlike the decisions by the Seoul Administrative Court and the Seoul High Court, ownership on the 1st grade biotope land means nothing but property right in nominal terms because the 1st grade biotope prohibits individual from exercising the right to use its property nor dispose its land at its will. Such restrictions are beyond the limits of social constraints that the individual land owner must accept, which is unconstitutional.