기반시설과 도시계획시설의 관계

Infrastructure refers to facilities essential for maintaining urban functions and supporting citizens' daily lives, which are characterised by their publicity. Urban planning facilities are infrastructure that is both essential for urban functions and possesses high publicity and impact, thus necessitating installation through urban planning decision procedures. Some infrastructure is established as urban planning facilities via urban planning decisions, while others may be installed without such procedures, instead using simplified methods such as building permits. Infrastructure installed through simplified procedures does not qualify as urban planning facilities. An urban planning decision assumes the publicity of infrastructure, thereby justifying privileges like expropriation rights, yet requires compliance with stringent procedural requirements. The justification of such decisions relies on the fulfillment of conditions like publicity; otherwise, the rights associated with urban planning facilities, such as expropriation, cannot be granted. A failure to meet the necessary requirements for infrastructure typically constitutes a serious defect in the urban planning decision. When an urban planning decision is made retrospectively for an existing infrastructure facility, various defects may arise. If the retrospective decision pertains to an infrastructure facility that must legally be established through an urban planning decision, such a decision may be permissible in theory, but should be subject to stricter standards than preliminary decisions. If the infrastructure is operated by the state or local government, any urban planning decision should be reached in consultation with the responsible authority. However, if the owner and operator is a private party, the owner's consent becomes essential. In contrast, a retrospective urban planning decision for a facility that does not meet infrastructure criteria should generally be considered invalid. When urban planning decisions are retroactively applied to non-infrastructure facilities, the privileges typically granted to urban planning facilities become irrelevant. Instead, the owner is subject to activity restrictions imposed by the urban planning decision, potentially resulting in detriment. Thus, retrospective urban planning decisions for non-infrastructure facilities should not be allowed, and such decisions remain unlawful regardless of the owner's consent. The prevailing legal theories and case law generally require both importance and clarity to contest the nullity of administrative actions based on defects. However, a more intricate standard for clarity is necessary in cases where requirements for infrastructure have been misinterpreted in urban planning decisions. Given the characteristics of urban planning procedures and the obligation to balance private and public interests, clarity of defects in urban planning decisions may be more readily established than for general defects. If such defects are present in a retrospective urban planning decision, the defect should be regarded as inherently clear, or alternatively, the requirement for clarity may be deemed unnecessary in the interpretation of such decisions.