개발행위허가 기준에 대한 행정적 통제 방법 연구 - 법령해석규칙을 중심으로 -

Abstract

It is a problem because the legislative goal of efficient management of national land plans and prevention of reckless development set by the National Land Planning and Utilization Act is ambiguous. In other words, Chapter 5 of the National Land Planning and Use Act stipulates standards for development activity permission in Article 58, and Article 55 to 56 of the Enforcement Decree of the Nation. However, these regulations, which set the criteria for the possibility of permission for development activities, have many parts of the concept of uncertain law in setting the requirements, and the administrative agency is recognized for a wide range of judgment. In addition, not only the National Land Planning and Utilization Act, but also the legislation orders and ordinances of local governments are scattered through delegation, causing confusion in the practice of permitting development activities. Therefore, in order to prevent the arbitrary exercise of the authority of the administrative agency and to secure the trust of the people in the administration, it is necessary to specify the concept of the uncertain law of the development activity permit standard. As a methodology, the enactment of the Statutory Interpretation Rules can be cited. It is difficult to say that the concept of the Statutory Interpretation Rules are still active in the practice of permitting development activities. The Statutory Interpretation Rules are administrative rules that stipulate the interpretation of laws and regulations, and are intended to ease the difficulty of legal interpretation by law enforcement agencies and promote uniform and single application of the law. The Statutory Interpretation Rule is particularly related to the interpretation and application of the concept of uncertain laws, and as long as their nature is an administrative rule, they can be enacted without delegation of laws and regulations. In addition, The Statutory Interpretation Rule will be respected in judicial review, unless it is clearly unreasonable, in that the administrative agency recognizes the room for judgment in the interpretation of the concept of uncertain law. The need to specify the concept of the uncertain law was also reflected in the recently revised Administrative Procedure Act. On the other hand, the administrative agency’s actions are always linked to regulatory reform of the Framework Act on Administrative Regulations, so it is necessary to spread the idea that setting the standards for the concept of legal uncertainty is not subject to regulatory reform.