기존 부적격 건축물의 특례제도에 관한 연구 - 한일간의 비교법적 고찰을 통한 우리 특례 규정의 정비방안을 중심으로 -

Abstract

It may prescribe regulation more strictly to cope with the change of social conditions. It is necessary to consider the administrative purpose of new laws and ordinances and the protection of vested rights then. Therefore, decided to apply old laws and ordinances by the building law for the building (include an existing building) under construction. This is a Japanese existing building exception system. Interpretation under construction includes two opinions. first is a start of construction theory. This is an opinion that start of construction afterward is under construction. There is a building theory next. This is an opinion to be under construction with the existence of the building which is an artificial structure. Part of the precedent had depended on the building theory, but judged the Supreme Court is as start theory of the construction. Korea establishes an existing building example system, too. (For example, building law Article 6, land development program law Article 82). At first it is new construction. The Korean laws and ordinances do not establish a rule for new construction. The common view (precedent) looks at the time of the illegal judgment at the time of disposal. Therefore, it may be said that recognize the exception of the existing building in construction law Article 6 in Korea according to this opinion in the case of new construction. This is because building works are possible regardless of an establishment and the revision of laws and ordinances successively when receive permission. Therefore, it is as follows to become the problem. In other words, expecting a disadvantage after the revision, It means that cannot block a planning permission application during a notice period. Therefore, it is necessary to recognize the exception of the existing building in land development program law Article 82 or building law Article 6 to which range for new construction, or to make it clear. It is thought that it is necessary to prevent permission application to do it like land development program law Article 31, and to interrupt if I say for the legislation idea. But it becomes the problem to decide start of the construction time. In this case, it is thought that it is necessary to receive current events in a Japanese example. Next is a problem for extension and reconstructionnext. It is thought that it is necessary to put a rule to relieve it like Japan in the case of extension and reconstruction when it is constant. And it establish it as follows in land development program law Article 31 Clause 2 of Korea. In other words, “at the time of decision of the city planning, the person who made start of the construction can follow by the construction regardless of city planning decision.” But it is as follows to become the problem. In other words, it prescribes the city planning decision, but does not prescribe it for the revision of the law. However, it is thought that there is not the rational reason that must establish a difference for the establishment of laws and ordinances and the decision of the city planning. Therefore, it is thought that it is proper to do as well as city planning decision in the case of the legislation. Finally it is thought that it is necessary to tie up land development program law Article 31 (Clause 2) with land development program law 82, and to prescribe it.