국토계획법상의 주민제안제도를 둘러싼 법문제 = Legal Issues surrounding the Resident Proposal System under the National Land Planning and Utilization Act

다국어 초록 (Multilingual Abstract)

The current system for proposing urban and county management plans by residents in Article 26, Paragraph 1 of the National Land Planning and Utilization Act(hereinafter referred to as the National Land Planning Act) was introduced through the revision of the Urban Planning Act in 2000 with the aim of restoring the city's "identity" and "location," which had been losing its self­identity due to development­oriented urban planning policies since the 1960s. Since residents have a lot of information about the history, geography, and climate of their own area, this system was introduced in order to utilize this information. However, when looking at the actual conditions in operation since the introduction of this system, most of them are used as a system to secure business activities of business men, not residents' participation, contrary to the original background and purpose of the introduction. The problem is that their industries are often hate facilities far from the recovery of "identity" and "location" in the area, causing conflicts with residents.The National Land Planning Act also has a device to prevent the above problems anticipated. It is the provision that the drafting of an urban and county management plan stipulated in Article 25, Paragraph 1 of the same Act must be "accorded with" to the basic urban plan. Since urban basic plans are prepared through scientific and empirical analysis, there is no such material for confirming the "identity" and "location" of the area. Therefore, if we look at whether the proposal is "accorded with" in light of the contents of the basic urban plan for the area, we can sufficiently filter out absurd draft proposals.As seen in the case of Sangju City in this paper, neither the administration nor the court is well aware of the background or purpose of the system. In addition, the court is taking a method of examining all issues by returning them to profit sentence in the examination of the illegality of refusal to draft. The theory of profit sentence is a methodology for legal interpretation originally developed in the judicial field for the purpose of adjusting private interests, and there are many problems in applying it to problems in the public law field in which various public interests are intertwined in multiple layers, as in this case. Therefore, there is a high risk of drawing a wrong conclusion like the first decision in this case. In the first stage of judicial review, the review should be conducted with a focus on whether the content of the proposal is accorded with the content of the local urban master plan, not based on the theory of profit sentence. As a result, if the content is far from the restoration of the region's "identity" and "location", a conclusion may be drawn at that stage.Where a theory of profit sentence is required, the proposal is ambiguous or appropriate to be accorded with the contents. In this case, the court may determine whether the refusal (or acceptance) of the draft is illegal by profits sentence based on the sentence factors discovered through the hearing of opinions of residents and local councils and the advisory process of the urban planning committee. The court should also naturally judge whether the opinions of residents and local councils were properly discovered in the process of consulting the urban planning committee, and whether the head of the mayor/county governor properly weights with the discovered sentence elements.

참고문헌 (Reference)

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2 "전주MBC 2024년 5월 19일 방송"

3 "전북일보, 2024년 5월 30일자"

4 "전북일보, 2024년 5월 13일자"

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14 박무익, "개정 도시계획법 해설(Ⅰ)-장기미집행시설 해소-" 35 (35): 2000