건축법상 가설건축물 규제의 혼란과 형사처벌 - 인천지법 2024. 8. 14. 선고 2024노140 판결에 대한 평석을 겸하여 -

The judgment recently sentenced by Incheon District Court sends an important message calling for academic interest in both administrative and criminal laws regarding the confusing regulations of the current law on temporary buildings. In this article, with the sentence of the judgment, the current status and problems of the temporary building regulation system under the current 「Building Act」 are examined in two aspects: conceptual confusion and behavioral regulation confusion (II), and after reviewing the problems in the interpretation and application of criminal punishment provisions for violations of temporary building regulations (III). The judgment by Incheon District Court was evaluated and finally, a reasonable system improvement plan was proposed. Korean 「Building Act」 combines temporary buildings in a narrow sense to be regulated for risk prevention purposes and time-limited buildings as privileged buildings to be regulated for urban planning purposes, and regulations are also mixed in a single article, which is the same legal term, "temporary buildings." Due to the confusion of the system itself, two essentially different concepts create a normative illusion as if they are subject to the same regulation. In the legal interpretation and application stage, the concept of a temporary building emphasizes only one aspect of two different concepts in nature: a time-limited building and a temporary building in a narrow sense, and the confusion inherent in the wrong system itself is being amplified in practice, such as continuing attempts to force one of the two sides to the other. As a result, neither the time-limited building nor the temporary building has the predictability of what norms will actually be applied. In order to resolve this confusing state of regulation, the following system improvement measures were proposed. First, it is necessary to break through the wrong legislative method that stipulates temporary and time-limited buildings in the same clause. The regulations governing time-limited buildings and temporary buildings in a narrow sense should be insulated from each other. Exceptional permission provisions for time-limited buildings that can be exceptionally allowed within urban planning facility sites should be deleted from the 「Building Act」 and integrated into Article 64 of the 「National Land Planning Act」, or at least transferred to the 「National Land Planning Act」, and the requirements should be corrected to conform to the nature of exceptional permission for privileged buildings. Second, in the 「Building Act」, it is desirable to designate all formal buildings as subject to building permit or notification of building construction, and to purify "temporary buildings" into the concept of temporary buildings in a narrow sense. Articles that incorrectly stipulate the formal buildings as targets of notification of building construction should be deleted, such as "sample housing(model house)" in Article 15 (4) 4 of the 「Enforcement Decree Of The Building Act」 as if they were temporary buildings in a narrow sense. Third, clearly recognize the principle that the construction of temporary buildings in a narrow sense that does not reach buildings is, in principle, an area of free action. Those that need to be controlled for the purpose of public safety, etc., should be classified and defined as the subject of reporting the construction of temporary buildings. Fourth, rather than listing regulations that exempt formal buildings from application on the false premise that regulations on temporary buildings are naturally applied to temporary buildings classified as subject to reporting of temporary buildings, the law should specify the provisions that need to be applied to temporary buildings subject to reporting.