절대보전지역변경처분에 관한 사법적 통제 서울고등법원 2011. 6. 16. 선고 2010누27273 판결 중 절대보전지역변경처분의 적법성 여부 판단에 대한 평석

Abstract

One of the most important systems for the protection of natural environment in Jeju island is an absolute preservation area. Residents of Gang-jeong town argue that the change of disposition on absolute preservation area toward the coast of Gang-jeong is illegal, and filed a lawsuit against Jeju governor. But the court ruled that it was not illegal and the suit was dismissed. Then, I give an outline of the meaning and the purpose of the absolute preservation area, of the legal character and the process of the change of disposition on absolute preservation area, of the several action restrictions in the absolute preservation area. After that, I criticize the ruling of the court from the viewpoint of the limit of the planning discretion. Though the change of disposition on absolute preservation area toward coast of Gang-jeong is one of the administrative plans which has wide planning discretion, it violates the process and the formality prescribed by the special act and the Jeju provincial ordinance. There is no justification or reasonable necessity to take it. It violates the purpose and the designating standard of the special act. There was no balancing interests in it. So I argue that it must be illegal because it deviates the limit of the planning discretion. But the court decision that it was not illegal was a mistake made without any deliberate consideration. The court should control the illegal exercise of the administrative power and serve for the relief on the rights of the citizens. So the court might be criticized that it was not obligated to it’s duty.