건축행위의 실체적 요건과 건축신고의 제도적 본질

This article reviewed the nature and future tasks of the notification of building constructioning system under the Building Act at this point after the Supreme Court sentenced on July 23, 2020, which explicitly recognized the concept of building acceptability, and the enactment of the General Act On Public Administration, introduced a new general regulation on reporting requiring acceptance (Article 34). The actual reason why the legal nature of the notification of building construction is considered to be a report requiring acceptance was to enable the administrative agency to examine the substantive requirements necessary for the construction of the building subject to the report. What has been overlooked in the conventional discussion on notification of building constructions is that our building legislation does not constitute a complete exemption or exception to building permits. The Korean Building Act does not stipulate that a notification of building construction is an exception to both the substance and procedure of a building permit, but stipulates that “a building permit is deemed to have been obtained” when a legitimate notification of building construction is filed (Article 14 (1) of the Building Act). This is not a normative structure that stipulates the report as an exception to the total exemption from the permit, but draws the buildings subject to the report into the entire system of building permits. The interpretation that a notification of building construction falls under a self-complete report can be assessed as an excessive infringement of the building police law and the function of urban planning by exaggerating the ideal of deregulation. A criticism has been raised that notification of building constructions are always reports that require examination and acceptance and are no different from building permits. Some view notification of building constructions as ‘false deregulation’ that has no effect of deregulation. The current laws and regulations require a much shorter examination period procedurally than building permits, accelerating the process, and establishing special cases that require exemptions from some requirements, such as mandatory construction supervision (Article 25 of the Building Act), by persons with certain qualifications such as architects, and the intensity of judicial review in appeal litigation is inevitably different. In conclusion, notification of building construction is a fairly relaxed permit system, which differs from the formal building permit system. The discrepancy between the legal form of unilateral reporting and the vast substantive requirements required for building construction remains a fundamental problem. The current notification of building constructioning system secures the possibility of examining the substantive requirements of the administrative agency through the disposition of acceptance, but fundamentally needs a legislative solution. Another problem is that it is difficult to secure procedural means necessary to prevent infringement of legal interests of third parties, such as neighbors, caused by construction activities within the form of a reporting system with unilateral signatures. The court has a task to completely break away from the self-complete reporting theory. The legislator has a difficult task of establishing a procedural mechanism to protect the rights and interests of third parties such as neighbors in the notification of building constructioning system while maintaining the effect of deregulation different from the formal permit system.