보안경찰법상 일반적 수권조항에 관한 연구

박영하(Park Yeong-Haah) 조선대학교 법학연구원 2012 法學論叢 Vol.19 No.1

법치행정의 원리는 경찰행정작용에도 적용된다. 경찰권발동과 법률유보와의 관계에서 경찰작용에 관한 일반적 수권조항의 필요성과 허용성 및 그 존부에 관한 학설과 판례는 크게 긍정설과 부정설로 구분된다. 긍정설의 논거는 「경찰관직무집행법」 제2조 또는 제5조 및 제6조 등이다. 대법원은 일관하여 긍정설의 입장에 서 있는 데에 반하여, 헌법재판소는 최근 부정설의 입장을 취하고 있다. 경찰관직무집행법의 제정 및 개정경과를 살펴보면 실제상 일반적 수권조항의 필요성을 인정하기 어렵다. 학설과 판례의 태도 역시 경찰권의 발동과 법률유보와의 관계에서 그 필요성이나 허용성이 부정되어야 할 것으로 본다. 따라서 실정법상 일반적 수권조항은 존재하지 않으며, 나아가 향후 일반적 수권 조항에 관한 법률의 제정 또는 개정 필요성도 부인되어야 한다. 일반적 수권조항이 실제상으로나 이론상으로도 불필요하기 때문이다. Act on the Performance Duties of Police Officers was enacted in 1953. In this paper I would like to research theories and precedents as to the necessity, the admissibility of a general enabling clause and the existence of a general enabling clause in our positive law system on the peace preservation police. And analysing the backgrounds and details of enactment and amendments of the Act above. I would like to consider critically the theories and precedents as to the necessity, admissibility of a general enabling clause, the existence of a general enabling clause in our positive law and the need for legislation of a general enabling clause. They are divided into two parts ; affirmative and negative. The Supreme Court set a precedent that the article 2 etc. of the Act on the Performance Duties of Police Officers is the general enabling clause in exercising the police authority and the Court follows the precedents till now. On the contrary, the Constitutional Court is deciding that the article 2 of the Act above is not the general enabling clause in exercising the police authority in a recent constitutional appeal judgement. The Court made a decision that acknowledgment of the existence of the general enabling clause in exercising the police authority is destroying the rule of law, Vorbehalt des Gesetzes. And finally, admitting that the article 2 of the Act above is the general enabling clause in exercising the police authority, it is not constitutional ground, for it goes against the principle of disclosure. The Act, 1953 provided six standard measures, and the current Act provides only 7 standard measures. This means that any more standard measure and general enabling clause is not needed in reality. In conclusion, I deny the necessity, admissibility of a general enabling clause, the existence of it and the need for its legislation. And I dissent any enactment or amendment the Act concerned, for any more standard measure and general enabling clause is not needed in reality. In addition, the current clauses of standard measures in exercising the police authority are provided excessive indeterminate conceptions. And they are apt to be in use as a general enabling clause. We shall reorganize the individual enabling clauses in exercising the police authority systematically and comprehensively. In company with it, we shall research the legislative modification measure of the current Act on the Performance Duties of Police Officers to be within the limit of the principle of excessive enactment prohibition.

부동산중개업법 (不動産仲介業法) 의 정비방안

박영하 (Yeong Haah Park) 한국지역사회발전학회 1998 地域社會開發硏究 Vol.23 No.1

N/A

지역균형발전법의 입법방향

박영하 ( Yeong Haah Park ) 한국지역사회발전학회 2002 地域社會開發硏究 Vol.27 No.2

지역개발제도의 개선방안에 관한 연구

박영하 한국지역사회개발학회 2000 地域社會開發硏究 Vol.25 No.2

This paper suggests some indispensable factors in modification and supplements to our current laws as to regional planning and development system. In relation to this issue, this research attempts to analyze legal as well as theoretical problems as to regional development policy and national physical plans in our country. As is generally known, Korea has achieved rapid economic growth during the last thirty years. The economic growth and its structural changes have resulted in significant changes in spatial structure. Thus the central government has made various policies and measures continuously for growth control of major large cities for balanced regional development approach. But the National Physical Plans and the Capital Region Consolidation Plans could not achieved their goals. the 4th National Physical Plan has admitted the failure in the restrictions on physical development in the Capital region and the balanced national land development. In other words, the existing acts in Korea, e.g., the Capital Region Consolidation Act, the Balanced Regional Development Act, the Black Region Development Promotion Act, the Agriculture and Fishery Development Consolidation Act etc. have been proved not to meet their own aim, to have many problems. Therefore in order to settle down the problems some supplements and revisions to the current regional development acts are needed as follows ; (1) unification and consolidation as to regional development acts, (2) reformulating land use planning system, (3) integration of acts as to regional development, (4) restoration of the coordination and democratization in planning system and (5) readjustment of regional development project systems.

都市計劃法上의 用途地域制에 관한 硏究 그 法的 性質을 中心으로 : with Emphasis on the Legal Nature of City Planning as to Zoning

朴永夏 건국대학교 1989 論文集 Vol.28 No.1

The purpose of this study is to identify the concept and contents of city planning as to zoning and the lagal nature of it. There are more people, the more land needed. But land as natural resource is very limited and cant be maltiplied according to the demand In many countries, especially like urbanized and industrial ized countries, sincere efforts for the best use of land have been made. There are various methods of land regulation in modern states. Zoning is very attractive method to modern city planning armong them. In Korea, the beginning of city planning law was the Town Act enacted in 1934 in modern meaning but in the meaning of nowadays it is a City Planning Law amended wholly in 1971 Our city planning had meant physical planning by 1960s, but it means a comprehensive planning contained socioecommic planning as well as physical planning after 1970s. Zoning had police administrative function at the beginning from the view of technique of city planning, but it has been developed gradually and has the function of land use controll in cities. Nowadays, the laws pertaining to administrative plan become the most important theme in the administrative law and such a plan has the binding force for each individual. Thus, as to the legal nature of city planning about zoning, there are various opinions. Some say its legal nature is similar to law, and others, a kind of administrative act. This plan violates and alters the rights of residents concerned concretely and individually. And such violation and alteration is complete when it is decided and promulgated. In this reason the city planning as to zoning must be the object of the judicial review. In this treatise, I don't deal with the qualification of a plaintiff and the illegality in procedure of city planning and so forth. The contents of this treatise are composed as follows; I.Introduction II.The concept and development of zoning III.Zoning, Land Use Plan and Urban Master Plan IV.Zoning In Korea V.The legal nature of city planning as to zoning VI.Conclution

條例制定權의 限界에 관한 硏究

朴永夏 건국대학교 1990 論文集 Vol.30 No.1

The purpose of this sutdy is to identify the conecpt and the limits of the legislative power of byelaws exercised by local self - governing bodies. Bylaws have very important meaning in the daministrative state. According to this, It is very expedient to identify the concept of byelaw, to make certain the original status of it in the legal system framework of a nation and the change of its status under the principle of law-governed administration in the present age. On the other hand, it is also of use to consider as to the legal ground of the legislative power of byelaws and its categorial and legal limits from reviewing the words of constitution and the provisions concerned of the Local Government Act. In the first place, let's consider the categorial limit of the legislative power of byelaws. The scope of local affairs which shall be regulated by the legislative power of local self governing bodies are enlarged more and more in many countries, conforming to the constitutional need of present time. And, with a view to promote the guarantee of fundamental human rights and local autonomy, it is recognized that the scope of national affairs should be limited. Furthermore, we must established the system of coorporation and mutual assitance between acts of parliament and byelaws. To return to the topic, byelaws have a certain legal limits, for it is a part of the legal system or framework of a nation. In order to omake certain the legal limit of it, it is useful for us to review the constitutional principle of 'rule of law' and the classical theory as to the relation between acts of parliament and byelaws, that is, the doctrine of absolute unlimited legislative control. There are various opinions about the relation of them and we can find the doctrine of absolute unlimited legislative control has its foundation that the national interest is superior to that of local self- governing body. But it seems tone that this point of view should he overcome since it is is an anachronistical way of thinking. Being over against this, a new point of view becomes a prominent figure in 1970s, which is called the constitutional point of view. The constitutional point of view has its grounds on the constitutional gurantee for the independent powers and sbsolute rights of local autonomy. According to this point of vew, when acts of parliament infringe the constitutional rights and powers of local self-governing bodies, the acts will be the unaconsitutional ones. Nowadays, rapid urvanization and industrialization has caused a universal thendancy of reappraining the question of local autonomy, even though the aspects differ with countries. On reflection, in Korea, the first Local Government Act was enacted in 1949 but the local assemblies, based upon the Act 1949, has disorganzed in 1961. However, in accordance with the whole amendment of the Local Government Act in 1988, local autonomy have met a new turning point and byelaws became to have its own substance. Henceforth our scientifical and practical efforts are consistantly needed to meet the manifold administrative demands of residenzs and to activate local autonomy. The contents of this treatise are composed as follows ; Ⅰ. Introduction Ⅱ. The concept of byelaw and its status in legal framework of a nation Ⅲ. The legal ground of the legislative power of byelaw Ⅳ. The Limits of the legislative power of byelaw Ⅴ. The relation between constitution and byelaw Ⅵ. The relation between act of parliament and byelaw Ⅶ. Conclusion