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Study on the Government Authorization Process and Legal Issue about Scheme of Execution for Public Facility

  • Public Land Law Review
  • Abbr : KPLLR
  • 2017, 78(), pp.1-35
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Sung Bong Geun 1 Sohn Jin-Sang 2

1고려대학교
2안동대학교

Accredited

ABSTRACT

Government has been often decided to determine Authorization about Scheme of Execution for Public Facility without communication and due process. This one-sided administration paradigm in it caused public conflicts grow bigger in our society. Now is the time to stop this decision style in also public facilities. We shall change it and determine Authorization about Scheme of Execution for Public Facility based on the consideration of the members in this society by the communication process about whether to decide, where to locate and how to compensate etc. Therefore, we shall change the paradigm of Authorization and Plan about Scheme of Execution for Public Facility so that we can catch up with the global trend of ‘interactive administration’ among the social members as well as administrative institutions. We are also necessary to revise the practice of law in court and legislation not to neglect the procedure, because we shall also consider the viewpoint of ‘guaranteeing equal living relations’ in space. Authorization about Scheme of Execution is an administrative plan decision for large-scale public facilities. It is disposable by the administrative agency and planned discretion is used for balance between so much related public interest and private interest. It is not exact if we call it Authorization because it’s character is belongs to patent which is generated to privilege to build public facilities for public interest. It is a principle that the Authorization about Scheme of Execution for Public Facility should be issued with conditions under various complex laws and ordinances. But it is often that the jurisdictions and procedures are concentrated with the provision of ‘legal fiction of Authorization and Permission’ or ‘concentration effect’. This legal system is very convenient for promoting administrative efficiency on the surface, but if we look inside, it neglects often the process for resolving the conflicts of many interested parties. This is related to the reality of our administration, which has lead to development- oriented administrative policies, and it remains a paradigm of unilateral administration or ‘command and control’ administration. It is time to transfer to the stage of interactive administration to resolve public conflict through sufficient discussion and dialogue rather than development-oriented decision. Now I suggest that we change the paradigm interactively, either by introducing a ‘German plan confirmation procedure’ or by implementing a modified version of our ‘legal fiction of authorization and permission’. Therefore, as in the German ‘German plan confirmation procedure’, we have to amend the legislation including ‘administrative procedure law’ so that important procedures for resolving conflicts of people can not be omitted.

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