건축법상 건축허가의 법적 성질 - 판례를 중심으로 -

Abstract

The building permit is the administrative measure that administrative office gives authority of building to applicants, removing the relative prohibition in case of observing the rule. Traditional theory and precedents take the position that the building permit in the building law is the binding act. Consequently, administrative office do not rejects the building application once they meet all the regulations, even though building of the architecture brings out the negative effects of public benefit such as environment preservation. In principle the building permit in the building law is the binding act, from the viewpoint of the recovery of building freedom. However the building permit unusually is the discretionary act under the concrete circumstances considering of various profits. For example, the building permit of leisure or lodging architecture and the building permit of the architecture contains city planned judgement such as the building permit including the permit of characteristics alteration of land(National Land Planning & Utilization Act 56) have characteristics of the discretionary act. There are the reasons for the discretionary act, the building permit of leisure or lodging architecture is because of the building law 11.(4), by which administrative office is given room for judgement, and the building permit of the architecture contains city planned judgement is because of considering of various profits. Expanding the scope of related rules considering of various profits, the building permit regarding to be the discretionary act has more increased.