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인ㆍ허가의제제도의 법적 문제점과 개선방안 연구

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Alternative Title
A study on legal problem of legal fiction of authorization or permission and improvement method
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.
Author(s)
최성두
Issued Date
2014
Awarded Date
2014. 8
Type
Dissertation
URI
http://dcoll.jejunu.ac.kr/jsp/common/DcLoOrgPer.jsp?sItemId=000000006864
Alternative Author(s)
Seongdoo Choi
Department
행정대학원 법학과
Table Of Contents
제1장 서론 1
제1절 연구의 배경 및 목적 1
제2절 연구의 범위와 방법 4
제2장 인ㆍ허가의제제도의 현황과 법적 체계 6
제1절 인ㆍ허가의제제도의 내용 6
1. 인ㆍ허가의제제도의 의의 6
2. 인ㆍ허가의제의 요건 8
3. 인ㆍ허가의제의 법적 성격 12
4. 인ㆍ허가의제의 효과 12
5. 인ㆍ허가의제제도와 독일의 집중효제도의 구별 16
제2절 인ㆍ허가의제제도의 도입현황 17
제3절 주된 인·허가와 의제대상이 되는 인ㆍ허가 18
1. 주된 인ㆍ허가의 선정 19
2. 인ㆍ허가의제 대상이 되는 인ㆍ허가의 종류 22
제4절 제주특별법에 따른 인ㆍ허가의제제도의 현황 및 체계 32
1. 제주특별법에 따른 인ㆍ허가의제제도의 연혁 32
2. 제주특별법에 따른 인ㆍ허가의제제도의 체계 33
3. 주된 인·허가 35
4. 인·허가의제 대상이 되는 인ㆍ허가 40
제3장 인ㆍ허가의제제도의 법적 쟁점 및 개선방안 45
제1절 인ㆍ허가의제의 형식 및 절차 45
1. 인ㆍ허가의제의 규정형식 45
2. 인․허가의제의 요건 관련 53
제2절 의제대상 인․허가의 적합성 58
1. 본질적으로 의제대상으로 어울리지 않는 것 59
2. 신고 등 협의절차를 이행할 수 없는 인ㆍ허가에 대한 인․허가의제 63
3. 인ㆍ허가의제 규정 법률의 증가 66
4. 개선방안 67
제3절 인․허가의제의 내용 68
1. 의제되는 인ㆍ허가에 수반되는 사항 68
2. 의제대상 인ㆍ허가의 사후관리에 관한 사항 70
3. 인ㆍ허가의제의 부분효력발생이 가능한 지에 관한 사항 75
4. 집중효와 인ㆍ허가의제제도의 개념 차이에 따라 발생할 수 있는 법적 쟁점 77
제4장 결론 81
참고문헌 85
ABSTRACT 87
Degree
Master
Publisher
제주대학교 행정대학원
Citation
최성두. (2014). 인ㆍ허가의제제도의 법적 문제점과 개선방안 연구
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