인ㆍ허가 의제의 효력 범위 - 주택법상 처분 단위를 중심으로 -

Abstract

As the legal fiction of the authorization and approval system, frequently used in Korea's spatial legislation, is widely related to various issues covering all areas of administrative law, it takes work to organize systematically. Representatively, the legal fiction clause that deems the designation and establishment of district unit planning zones if there is the approval of the project plan pursuant to Article 15 of the current Housing Act has been pointed out for incurring serious problems of omitting strict procedures required for the urban management plan establishment and has been at the center of discussion for whether it is possible to file an appeal against the urban management plan separately from the project plan approval. The Supreme Court ruling in 2018 presented several important decisions on the issues that have been previously problematic in relation to the legal fiction of authorization and approval under the Housing Act. In this article, the scope of effects for the legal fiction of authorization and approval is reviewed, particularly in relation to the scope of effects for the major disposition (disposition unit) when the major disposition that deems the respective authorization and approval is a project disposition under the development project laws. To this end, the existing discussions on the legal fiction of authorization and approval agenda were first briefly reviewed (II), and the disposition unit under the development project laws was reviewed in segments of building units, zones, and complexes under the Housing Act for its concepts (III). Based on this, the issue of whether the related authorization and approval can be deemed beyond the housing complexes, which is the project plan approval disposition unit under the Housing Act (IV), was reviewed. Lastly, the function of the legal fiction clause for the authorization and approval in our spatial law and future court rulings was predicted (V).