사업계획절차에 특수한 쟁점과 법리 -대법원 2020두42569 판결 및 대법원 2021두34732 판결-

Abstract

This study derives issues related to planning discretion and fictive permission procedure from two target judgments on the project planning procedure, introduces the relevant laws and legal doctrines in general, and analyzes, synthesizes each judgment based on that results, then, legal, policy-related problems and future improvements are explained. The conclusion can be presented in several propositions as follows. (1) The fictive permission has an instrumental aspect for speedy procedures, but at the same time, it serves the purpose of appropriateness of procedures. The fictive permission is a key tool in the project planning procedure with planning discretion as an element, and can play a role corresponding to the planning confirmation procedure of German law. Accordingly, it is necessary to differentiatedly develop legal doctrines for the fictive permission which is a means of planning discretion, and the simple fictive permission, which is not. (2) Regarding the possibility of extending the period for processing approval for the project plan involving the fictive permission, the judicial precedent is a negative conclusion, but the legal interpretation, in according to which the extension of the processing period should be exceptionally allowed in view of the fact that the appropriateness of the procedure as well as the expediency of the procedure must be considered, is reasonable. In addition, it is necessary to carefully apply the legal doctrine of precedents, that, if consultations between related administrative agencies are not made, the fictive permission will not take effect within that scope, in that the doctrine can collapse the system itself of the fictive permission. (3) In the public-private partnership, prior to the application of legal doctrines related to the limitation on cancellation or withdrawal of beneficial administrative acts based on the general trust protection principle, special legal doctrines that can properly function in the protection of higher trust than in the usual case should be developed. (4) The balancing order, which is the core of planning discretion, is an effort to make the uncertain state of the norm as clear as possible, but it should not be taken as a trial norm. Therefore, judicial review should be conducted within the scope of inducing and sanctioning the development of the code of conduct in practice. Unlike this, if the judges directly exercise planning discretion, the conclusion will be different at each trial level, resulting in distrust of the judiciary.