재건축상 관리처분계획에 관한 인가론적 고찰과 판례 비판

Abstract

Legal disputes arising during the implementation process of the housing reconstruction project in Act on the Improvement of Urban Areas and Residential Environment take various forms depending on the legal opinion interpreting administrative actions. There are various precedents made in past lawsuits in the management and disposal plan part, which is the core of the housing reconstruction project, and those precedents centered on administrative legal approval. Previously, Legal Approval theory was the dominant logic in precedents made in disputes on housing reconstruction projects. Therefore, disputes had been resolved through civil suits. However, after the Act on the Improvement of Urban Areas and Residential Environment Enactment was enacted, the Supreme Court ruling (2008DA60586, 2009DU4845) changed the existing view. In other words, an association was judged as an administrative entity and legal acts performed by an association as an act of establishing right with disposition as an administrative agency. Therefore, it was argued that disputes over the reconstruction project should be contested through the administrative court's appeal. However, attempts and rulings are continuously made to resolve disputes through civil lawsuits. It is the result of a lack of correct understanding of the administrative action of approval, which Insight the Act on the Improvement of Urban Areas and Residential Environment. Approval is for legal acts. An essential sign of true Approval involves the complementarity of act, Completion behavior, ratification behavior, judicial act as a legal act, recognition of the validity requirements of the precede legal act, and a law in which the effect of the legal act prior to approval did not (fluidly) occur. It should include the state as its content. In particular, it is important to distinguish whether or not there is a need for 'a high-power act of the characteristic as public law'. In this study, the nature of approval and its contents are grasped and compared with previous studies related to administrative legal approval. In addition, it reviews the logic and position of the existing precedents regarding lawsuits related to management and disposal plans and approvals that occurred during the housing reconstruction project and criticizes court's ambiguous approval logic through two review processes. In addition, it criticizes judicial precedents in cases where an issue is dismissed by imitating the position of existing precedents. Furthermore, I am concerned that administrative law becomes judicial law.