제주도 ‘곶자왈’ 지역에 대한 판결인 대법원 2020. 08. 13. 선고 2020두37994 판결․대법원 2020. 08. 13. 선고 2020두38003 판결에 대한 평석 - 개발행위허가의 재량행사를 중심으로 -

Abstract

This paper is a case study on the Review of the Supreme Court 2020DU37994 sentenced on 2020.08.13.･Supreme Court 2020DU38003 sentenced on 2020.08.13. which are regarding Building permission and development activity permission in Jejudo “Gotjawal” zone and there are two major issues. First, Jejudo has a legal basis about the “need to preserve the Gotjawal” but there are no other legal basis or any other notice about where and what is the “Gotjawal zone”. So the effect of administrative disposition is discussed when administrative office refused building permit application or development activity permit application disposition on the grounds of “Gotjawal zone”. Concerning this issue Supreme Court said that administrative office can make Jejudo “Gotjawal zone’s” location without clear legal basis. Because administrative office has an authority to make “Gotjawal zone” according to 「SPECIAL ACT ON THE ESTABLISHMENT OF JEJU SPECIAL SELF-GOVERNING PROVINCE AND THE DEVELOPMENT OF FREE INTERNATIONAL CITY」§354 and 「JEJU SPECIAL SELF-GOVERNING PROVINCE GOTJAWAL PRESERVE AND CONSERVANCY ORDINANCE」 §2 ~ § 3. In the second place, refusal disposition which is caused “Gotjawal zone” is discussed. In this issue Supreme Court said that 「NATIONAL LAND PLANNING AND UTILIZATION ACT」§ 56 ‘development permission’ is indefinite concept(amorphous and broad concept) so administrative office has an authority for discretion so in this authority administrative office judge the application for development activity permission whether compliance or not. And in thess cases administrative office’s refusal dispositions are not illegal because they comply with principle of proportionality, principle of equality and rule of law. In these days Supreme Court grants a discretion especially about development activity permission which is related with environmental issue. Jejudo is the only place where has “Gotjawal zone” in Korea. So these Supreme Court Cases are represent much meaning for administrative office’s discretion about development activity permission and building permission.