의제된 인허가의 처분성

Abstract

The Supreme Court has not clearly acknowledged the existence of counted permission in the legal fiction of authorization or permission. But Recently, The Supreme Court decisions - Supreme Court Decision 2017Du48734 Decided July 12, 2018; Supreme Court Decision 2016Du38792 Decided November 29, 2018 - was made with the intent of granting it. It based on acceptance of partial-counted permission, review of substantive requirements, equally effectiveness of genenal permission and counted permission. But such grounds are not directly related to the existence of counted permission. The first is about decision making and has nothing to do with the existence of permission. The second is about the purpose of the licensing system. The third is about the effectiveness of the permission and is not related to the existence of the permission, which is a matter of the external formation of the permission. The decision should be made based on whether or not it is necessary to cancel itself. When it is granted, you can file lawsuit not only for the main permission but also for the counted permission. Those who admit it argue that it is helpful for the protection of authorized party and third party, smooth performance of the target project. But it is not clear whether that will actually help. Because the third party aims to prevent the infringement of its own interests by doing business, cancellation of counted permission alone does not fulfill his purpose. The project is to be delayed until it's canceled and then approved again. If he doesn't get permission again, the administration has no choice but to revoke the main permit. The recognition of counted permission is inconsistent with the concept of administrative disposition. It is hard to recognize the legal necessity of litigation. It is desirable that law be prescribed after sufficient discussions between academia and practice.