토지의 불법개발행위 제재와 사권보호 - 원상회복 명령 부작위를 중심으로 -

Illegal land development activities have been occurring since the implementation of the land development permit system across the country. In order to construct a building or change the status of land, permission must be obtained from the administrative agency. Failure to obtain permission constitutes illegal development and requires restoration to the original state through an administrative agency order to restore the original state. However, the administrative agency may not issue an order to restore the original state if it deems it unnecessary. This paper discusses “reasons why restoration is unnecessary” and the legal theoretical basis for the disposition of “failure to issue an order to restore to the original state”, and argues that illegal activities can become legal activities and land ownership can be protected. In the case of implementing a public works, the compensation amount for illegally developed land is determined unfavorably by assuming that there was no development, but if the legal theory of “reasons why restoration is unnecessary” and “failure to issue an order to restore to the original state” is invoked, the compensation amount for illegally developed land can be determined based on the current status, and the current compensation law provisions are unconstitutional. In the case where the surrounding environment of the land has changed due to the long-term illegal development without an order for restoration from the administrative agency, making restoration unnecessary, or where there is no practical benefit to restoration due to the implementation of a public works, the legality of the illegal development should be acknowledged and land ownership should be protected.