구 군사기지법상 보호구역 및 비행안전구역 내 개발행위허가에 대한 부동의 사유에 대한 재량성 및 사법심사의 방법

Abstract

According to the Land Planning and Utilization Act, if the land for which the land form change is requested as a development activity falls under the restricted protection zone and flight safety zone under the Military Base Act, consent must be obtained from the head of the competent unit. Since the decision on whether or not to consent to the commander of the competent unit is a discretionary act made in consideration of the purpose of designation of the restricted protection zone and the flight safety zone under the Military Base Act, the discretion of the commander of the competent unit in deciding whether to consent and the proof thereof Responsibility and the degree of judicial review were problematic. Also, since the judgment of the district court and the appellate court differed in the specific judgment on the appropriateness of the grounds for consultation within the flight safety zone, it is also a question of how much the court will respect the discretion of the interpretation of the administrative agency regarding the subsumption of legal requirements. The judgments dealt with in this thesis are indeterminate concepts such as 'flight safety', 'smooth execution of military operations', 'protection area protection', and 'safety of local residents' among the legal requirements for permission for development activities that are discretionary acts. In this case, since such an indeterminate concept is a case that requires a high degree of professional and military judgment, it was reconfirmed that the position should be respected as much as possible through a relaxed examination (arbitrariness examination). In the case of military bases, the peculiarity of being a divided country still needs to be fully considered when permitting development activities, and in this respect, it is considered reasonable to respect the professional and military judgment of the administrative agency. However, the fact that the court is making a judgment that respects the professional and qualitative judgment of the administrative agency in areas where serious public interests such as national security and military operations, environmental issues, and health issues are considered or can greatly affect people's lives is to that effect. Although it is possible to sympathize with the situation, there is of course some regret from the standpoint of individual parties who are restricted in property rights, etc., and it is desirable to prepare detailed interpretation standards or standards for discretionary exercise through legislation in consideration of public trust and predictability as much as possible. In particular, in order to prevent cases in which important rights of the people are restricted or deprived for reasons of significant public interest, even though the administrative agency believes in the judgment trend of the courts that respect discretion and neglects the revision of laws and regulations, it is necessary to take a proactive approach to protecting the rights of the people. You also need to make a decision.