건축허가의 토지공법적 검토와 과제

Abstract In order to understand the various land law issues related to building permit and to suggest specific and reasonable solutions, a clear review of the relationship between building permit and development permit is necessary. It is difficult to find discretion in a building permit itself, but in a building permit that accompanies a development permit, the building permit also has discretion due to the discretion of the development permit. Since the development permit system is applied nationwide and building permit and development permit (building construction) are in comprehensive deemed authorization or permission relationship, building permits are in fact discretionary in nature. The provisions related to development permit in the National Land Planning Act serve as the basis for interpretation of the protection of private interests as the basis for building permit or related laws. If it is proven that residents have suffered or are likely to suffer damage to their property interests or living environment beyond the permissible limit due to the construction of a building, it is reasonable to actively recognize the plaintiff's standing and disposability to file a lawsuit for cancellation. In cases where the property rights of the building owner and the environmental interests of nearby residents conflict, it is necessary to broadly respect the discretionary judgment of the administrative agency, but it is not acceptable for this to excessively infringe upon the interests of the building owner. In this case, the legitimacy of the decision must be secured through the relative strengthening of procedural control over discretionary acts. The Building Act and the National Land Planning Act have different purposes and contents, so although the building permit and the development permit (construction of building) regulate the same act, it is requested that they be clearly regulated by distinguishing them in each law. In cases where different legal principles apply, such as development permit (building construction) and land type change permits, there is a problem of confusion in their application due to simple listing in one article. From a legislative perspective, it is necessary to reorganize the provisions related to development permit in the National Land Planning Act and the deemed authorization or permission provisions in the Building Act.