건축신고와 법해석의 한계 - 대상판결: 대법원 2023. 9. 21. 선고 2022두31143 판결 -

The unresolved jurisprudence and the academic debate surrounding the building permit agenda and the essential and simplified legal fiction are unique to Korea, and it is difficult to find an exact comparative legal example. The question of whether to apply the existing jurisprudence on building permits to building reports that are subject to development activity permits under the Land Planning Act is the intersection of these two difficult issues. Ultimately, it is a matter to be resolved through the amendment of the relevant laws, so no matter which interpretation is adopted, it will be subject to a great deal of criticism, but at such times, the court must faithfully comply with the basic principles of statutory interpretation. In the subject Supreme Court case the primary issue is the revocability of a building permit (which falls under the procedural fiction), but the main issue to be addressed in this article is whether the preceding Supreme Court Decision dated July 23, 2020, regarding the essential fiction of a building permit, can be applied to a building permit. As in the case of a building permit, if a development activity permit (permit for a building) is mandatory for a building report, the result is that the development activity permit (construction of a building) requirement of a building permit and the development activity permit (construction of a building) requirement of a building report are the same, and the scope of the administrative agency's discretion over the two is the same, which defeats the legislator’s purpose of distinguishing between permits and reports under the Building Act. The original judgment rejected the plaintiffs' claim that the cattle shed in this case was subject to a building permit and held that it was subject to a building notification, but held that the development activity permit under the Land Planning Act should be examined at the same time in the building notification process, and as a result, the building notification for the cattle shed in this case was subject to a wide range of discretionary judgment by the defendant administrative agency, just like the building permit. Whether the preceding Supreme Court's ruling, which interpreted the law to require a building permit for a building as a development activity permit, can be applied to the disposition of this case on a building application based on a literal interpretation is the premise and core issue of the first ground of appeal that was not determined in the target decision. The acceptance of a building report under the Building Act, which is designed to make a development activity permit (construction of a building) mandatory, is a classic case of concealed deregulation or apparent deregulation without the effect of deregulation. While the legislation was poorly drafted in the first place, the courts are no less to blame for allowing it to stand for nearly two decades. In particular, the target judgment judged the second ground of appeal as the same as the building report and the building permit without any consideration of whether the preceding Supreme Court's judgment could be cited as such, and did not judge the first ground of appeal even though it could have clarified the relationship between the building report and the development activity permit (construction of a building) under the Land Planning Act. As a result, the target judgment unfortunately missed a good opportunity to be a catalyst for legislative improvement.