환경 훼손 우려가 있는 건축허가의 법적 성질과 사법심사 기준에 대한 검토 (대상판결: 대법원 2017. 3. 15. 선고 2016두55490 판결)

Abstract

Both traditional views and court’s decisions on construction permit used to be compulsory action that must provide construction permit in case where all items required by relevant laws are satisfied. To apply strictly such compulsory action may be active protection of property right to the individual who desires to construct but would be passive protection of environment right that neighbors have and of surroundings which results in conflicts between the environment right and preservation duty by nation and people provided in Article 35 (1) of the Constitution. There was a Supreme Court case regarding construction of lodging facility with potential harmfulness arising out of or from operation of such facility, the decision of which was to prohibit from constructing lodging facility so long as the place to construct is within area consistent with criteria provided in the ordinance even if any official announcement or notification subsequent to the ordinance was not made to set out construction-restricted area within quasi agriculture and forestry area. The relevant law related to that case requires subsequent announcement or notification on detailed area restricting construction in the quasi agriculture and forestry area. However, the Supreme Court upheld the local government’s rejection on the construction permit due to satisfaction of criteria set out by the local government despite absence of subsequent announcement or notification, which decision is different from what other courts have viewed. The Supreme Court’s decision in question was regarding a chicken run and viewed that construction permit is discretionary action (as opposed to compulsory action) by administrative authority if the construction permit is subject to development including construction of facility has potential damage or harmfulness to surroundings. Further, the decision allows the administrative authority’s discretionary action to need to be respect broadly unless the authority’s decision apparently confronts the principle of equity or proportionality considering competing interest or value, or has absence of reasonableness in terms of potential environmental damage from facility to construct taking actively into consideration of environment right and environment preservation duty by nation and people in Article 35 (1) of the Constitution and the purpose of the framework act on environmental policy. The decision further explains the fact that existence of a valuation report opposing to or different from the prediction or evaluation by the administrative authority does not automatically constitute that the authority has made illegal decision. The Supreme Court’s decision intended to more weight on environmental preservation duty by nation and people than environment right as individual right in construction of facility to bring potential damage or harmfulness to environment, which could lead to debate in administrative authority’s discretionary action in construction of facility having potential environmental damage or harmfulness is adequate or not. Even if the governing law related to construction permit requires none of environmental damage or harmfulness, it is impractical of law to address detailed and every single criterion or standard because possible environmental damage or harmfulness is subject to nature of each case. According to the Supreme Court’s decision in question, construction permit to construct facility having potential environmental damage or harmfulness is subject to result of the discretionary action by authority which would cause controversy. Instead of bring the controversy, this review suggests to stipulate detailed public and environmental interests necessary to preserve in determining construction permit which will give predictability at a minimum to individual who desires to construct in terms of protection of property right.