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Current Status and Tasks of Litigation over Urban Planning Decisions - Focused on Cases in Japan and Germany -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2022, 10(4), pp.527-572
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : October 28, 2022
  • Accepted : November 21, 2022
  • Published : November 30, 2022

Kim, Sang-Jin 1

1세명대학교

Accredited

ABSTRACT

In Japan, the disposability of urban planning decisions based on the Urban Planning Act is not recognized, and on the other hand, it is difficult to say that confirmation litigation is being used as a party litigation with the issue of illegality or invalidity of urban planning decisions. Although it is possible to contest the illegality of the urban planning decision in the litigation for the cancellation of the urban planning project authorization or building disposition, it is sometimes interpreted that disadvantages arise from the urban planning decision itself before such a disposition is taken. In such a case, it is necessary to secure a remedy under the current law. And if the disposability of the urban planning decision is not recognized, relief through the parties’ lawsuit should be sought. In cases where the illegality of the urban planning decision becomes a problem in the litigation for revocation of the urban planning project authorization, the Supreme Court precedent focuses on the deviance and abuse of discretion. In Germany, if ① omission of sentence, ② insufficient sentence, ③ erroneous evaluation of sentence, or ④ imbalance of sentence is recognized, there is a violation of the request for an appropriate benefit sentence. Moreover, it is a precedent of the Federal Administrative Court that both the sentence process and the sentence result are subject to review by the court. I think Japan should think the same way. In view of the fact that normative control over global tax planning is recognized in Germany and the proposal of the city planning dispute system, this paper aims to introduce a special litigation for the legality and validity of urban planning decisions based on the Urban Planning Act in Japan and it takes a position where it is desirable. However, under the current law, there are cases where the illegality of the urban planning decision is considered as a disposition and a lawsuit for cancellation is filed or the illegality of the urban planning decision is an issue as a premise in the cancellation lawsuit such as whether it is an urban planning project, and how can we resolve such disputes? What should be done is also an important task. Therefore, in this paper, based on the knowledge obtained through the study of German law, important issues in the case of competing urban planning decisions under the current law, namely, disposition, litigation selection, and illegality examination, are reviewed, and then the legislative theory such as the urban planning dispute system is analyzed and add evaluation. In addition, the 2006 and 2009 reports are the main objects of review for the legislative theory. However, the Report of the Administrative Procedure Law Study Group in November 1983 - the draft outline (draft) and the 2nd Amendment to the Administrative Case Procedure Law of the Japan Bar Association dated June 15, 2012 are mentioned, to some extent.

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