인ㆍ허가의제제도의 법적 문제점과 개선방안 연구

Abstract

Jeju became a Special Self-Governing Province on July 1st, 2006. Its purpose was for a good of national development generated from building Free International City by making the most of regional, historical and humanistic features of Jeju Province and also by establishing Jeju Special Self-Governing Province with a high level of autonomy based on creativity and diversification. All this would be possible through ensuring practical decentralization, mitigating administrative regulation and adapting international standards. The Special Act on Establishment of Jeju Special Self-Governing Province and Creation of Free International City(also called "Jeju Special Act") was the grounds for founding Jeju Special Self-Governing Province. This act originated from Special Act on Jeju Province Development on December 31st, 1991. And then it was renamed as Special Act on Jeju Free International City after the revision on April 1st, 2002 and disposed later on July 1st, 2006 which made Jeju Special Act to be born afterwards. From the birth of Special Act on Jeju Province Development on December 31st 1991, the main purpose for this revision, legislation and disposal of the Act was to minimize the process of legal permission on development projects. Including the Jeju Special Act, many sets of legislation have accommodated the Legal Fiction of Authorization or Permission as a tool for simplifying the process. The Legal Fiction of Authorization or Permission means than once authorizing the main legislation, other laws accompanied by its whole enactment are also permitted as well. The Legal Fiction of Authorization or Permission was officially launched in December, 1973 which is the basis of Special Act on Industrial Cluster Development. The Legal Fiction of Authorization or Permission was introduced in 6 sections; large-scale development, installment of public facilities, business for preparing international events, making commercial facilities, building construction and lastly general sales fields. The Legal Fiction of Authorization or Permission for Jeju Special Act is classified into the section of large-scale development and 76 sets of legal permission was officially granted based on the 38 laws of Article 230. This Legal Fiction of Authorization or Permission is a convenience indeed, but it also has many legal problems. The problems on the Legal Fiction of Authorization or Permission can be divided into three areas; the formality and procedure, suitability for subjects, and the contents of its legal fiction. The formality and procedure issue can be sub-divided into problems on the regulation forms, and requirements of the Legal Fiction of Authorization or Permission. And the contents problem can be also separated as follows; concomitant factors of the Legal Fiction of Authorization or Permission, the hardship in the follow-up management, availability on the partial effect, legal conflicts in conceptual differences between the Legal Fiction of Authorization or Permission and the Concentration Effect and so on. Regulation forms issue happens when the subjects for the Legal Fiction of Authorization or Permission and its procedure is not clearly stated, so it renders much interpretative miscomprehension and public confusion to understand the specifications. As an improvement plan, it is suggested stating the specifications explicitly not to confuse people to comprehend the law, just as a good example of Clause 4, Article 230.Second point is about the requirements for the Legal Fiction of Authorization or Permission. As shown in Clause 3 and 4, Article 230, the interested parties' rights should be stated in details. Thirdly, some general sales permission is unnecessary as a subject for the Legal Fiction of Authorization or Permission but it is still treated as one of the subjects. This occurs problems in the follow-up management so if the subject is not appropriate for the Legal Fiction of Authorizationor Permission, it ought to be treated with a general law, such as Administrative Procedure Act. At fourth, accompanying factors like required documents, levies and any fees should be precisely stated. The good examples are Clause 5,Article 230, of Jeju Special Law, Clause 5, Article 11 of Special Act on Designation and Management of Free Economic Zones, and Clause 3,Article 19 of Management of Mountainous Districts Act. At fifth, after the law is authorized, a follow-up management such as how to manage people for entry and exit in the development workplace, and which party would cancel the authorized law in case of ordinance violation. This issue should be handled after confirming which administrative agency will supervise the follow-up management, and how to clearly stipulate the Legal Fiction of Authorization or Permission. When only few factors meet out of the whole requirements for the Legal Fiction of Authorization or Permission, the Supreme Court has acknowledged the partial effect. Hence, legislation has to be improved according to the decision of the Supreme Court and if necessary, it would be allowed to get the legal permission in advance and finish the negotiations afterwards. At seventh, the legal conflicts due to the interpretative misconception between the concentration effect and the Legal Fiction of Authorization or Permission is needed much discussion and countermeasure. The cause for all these legal issues is because of the failure on offering systematic standards for the nature, subjects, procedure and range of the Legal Fiction of Authorization or Permission. Therefore, as a solution to the legal conflicts, to stipulate the standards in the Administrative Procedures Act for operating the Legal Fiction of Authorization or Permission will be the most practical measurement.