건축법상 ‘접도요건’의 문제점 검토 - ‘건축법상 도로’ 및 대법원 2017. 10. 26. 선고 2017두50843 판결 검토를 중심으로 -

Abstract

The Building Act stipulates that a part of a building site should face a road, which is referred to as ‘road adjoining condition.’ For a site that does not face a road defined by the laws and regulations, including the Road Act, the ‘road adjoining condition’ is a huge obstacle to construction. Therefore, the Building Act allows exceptional cases where the ‘road adjoining condition’ is not applied if the access to a building is not hindered. However, recognition of the exceptional cases requires the consent of the owner of an adjacent land. In addition, the Building Act opens the way to solving the issue by using the ‘road according to the Building Act.’ However, since the conflicts between the owner of another building site and the owner of an adjacent land may not be appropriately resolved by the Building Act, many conflicts occur in practice. Moreover, the ‘road adjoining condition,’ included in the first Building Act enforced on January 20, 1962, has not been appropriately amended to resolve or reduce the conflicts. This article reviews the causes of the conflicts involving the road adjoining condition by focusing on the ‘road according to the Building Act,’ and provides a clue for resolving the conflicts by reviewing the Supreme Court Decision, 2017Du50843, October 26, 2017 that is recently drawing much attention. With regard to the ‘road according to the Building Act,’ the current Building Act opens a way for designating a road against the site owner’s will. Therefore, potential conflicts may occur between the owner of the site including a ‘road according to the Building Act’ and the building site owner using the road or the administrative agency designating it. Moreover, the current Building Act stipulates that the specific cases where a ‘road according to the Building Act’ may be designated against the site owner’s will should be stipulated by the ordinance of municipal governments. However, since the designation is not dependent on local conditions, it is reasonable that the designation should be implemented by the Building Act, abolishing the entrustment to the ordinance of municipal governments. A more fundamental problems is that the current Building Act does not include a regulation that compensate the damage to the owner of the site including a ‘road according to the Building Act.’ The interest conflicts of both parties should be mediated by having a person constructing a building by using a site including a ‘road according to the Building Act’ pay the right amount of utilization charge and allowing, based on the premise of paying the utilization charge, the designation a ‘road according to the Building Act’ against will of the site owner who abuses the rights. The Supreme Court recently made a noticeable decision about the ‘road adjoining condition’ in the Supreme Court Decision, 2017Du50843, October 26, 2017. The decision reconfirmed the precedent that the designation of a ‘road according to the Building Act’ is not assumed despite a past building permit. The decision also verified that disapproval of a building is legitimate in the absence of the consent of the land owner about the access road. The case of the Supreme Court Decision undeniably involves the site owner’s abuse of right regarding the access road, but the decision is reasonable because the current Building Act is silent regarding the compensation of the damage to the owner of a site including a ‘road according to the Building Act.’ The decision well demonstrates the need for amending the article of the Building Act about the ‘road according to the Building Act’ to mediate the interest conflicts between the owner of a land to be developed and one of a land to be used. In addition, the decision has the significance that it has provided the specific permission criteria to those who are practically in charge of building permit.