거부처분 이후에 변경된 법령에 따른 지방자치단체장의 재거부처분의 적법성 - 서울고등법원 2010. 6. 29 선고 2009누35575 판결상의 사안을 중심으로 -

Abstract

It is difficult to deny that an election system of the head of a local government by residents’ voting has contributed enormously to the settlement and development of a local self-governing system. On the other hand, it is also true that the system has caused many problems. One of those problems is a tendency to disregard the rule of law based on the selfish public opinion and pressure of local residents. For example, the head of a locality often refuses to issue a permit without any legal bases, and then shifts all the responsibilities to the courts by making the permit applicant challenge the permit denial through administrative litigation. Especially in the case of a permit denial, it is not easy to produce the actual effect of a court’s reversal unless the administrator issues a permit, although a reviewing court finds the permit denial illegal. Therefore, the head of a locality falls into temptation to make a permit denial based on another reason. If there is a new legal basis to refuse to issue a permit, he or she often refuses to issue a permit again. The permit applicant then has to go to the court again. Additional time and cost is thereby created in this manner. Certainly, the Supreme Court’s opinion that the administrator can make a decision afresh despite a court reversal would likely aggravate the situation described above. Many scholars and lawyers have tried to solve this kind of problem by framing it as an issue of the timing of illegality in administrative litigation, but there has been no clear-cut solution so far. The alternative solution should be based on a sense of justice: the administrator, the head of a locality, not the permit applicant, should be to blame, because it is he or she that first illegally refused to issue a permit. The permit applicant has no responsibility for the illegality and the changed situation before and after the court’s ruling. The starting point is to re-examine the Court’s opinion that the administrator can make a decision afresh based on a new law despite a court reversal. Such opinion conflicts with the phrase of Administrative Litigation Law Section 30(2), its legislative intent, and the characteristics of a court’s reversal ruling in litigating a permit denial. Thus, it should be revised in a way that the administrator is not allowed to review a second permit application afresh. This solution enhances the rule of law by remedying the unfortunate petitioner and punishing the unruly head of a local government.