道路建設로 인한 被害의 法的 救濟를 위한 小考 (A Study on the Legal Remedy in Road Construction)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 31권 / 2호 / 253 ~ 282페이지
· 저자명 : 이상천

초록

Road building is destined to take the following steps. Which is enumerated in order as step of basic planning of road building, step of road line decision, step of road zoning decision, step of taking road sites to road zoning decision, step of construction of road building, and finally step of declaration of using road.
It is true that road works sometimes positively and sometimes negatively. The construction of road building hurts our living environment. Thus we need the legal way of deterring road construction according to every step during building road.
Firstly, it is a way of deterring road construction that every decision to the step of road building situation should be tested thoroughly. By that the road building could not go ahead.
The above administrative decisions have the character of discretion, but something which should be taken into consideration in making decision should be taken into consideration and vice versa. If not so, we should say that the decision have the failure in procedure and it can be cancelled via objection.
Secondly, it matters which of the two would be suitable for deterring road construction, ‘suspension of execution’ or ‘provisional injunction’.
When road zoning decision precedes construction of road building, it would be legally impossible to block road building entirely. For the effect of administrative act should not be deterred by way of civil law. Meanwhile we could apply for provisional injunction due to the problems occurred during road building, which doesn’t hurt the effect of administrative act.
But in case of constructing road before road zoning decision, the deed of road building is purely just an action in fact by civil law but an administrative act. So we should say that it is entirely suitable for provisional injunction. In this case the construction of road building should be thoroughly tested because it didn’t pass the gate of scaling between public interests and private interests. Thus unlikely in common cases ‘onus probandi’ should be converted to the authority concerned in that case. The authority concerned should have the burden of proof that the road building doesn’t hurt civil’s private interests in natural circumstances or living circumstances. And the public interests due to deterring the road building should be included to the interests which is protected by provisional injunction.
In the end, it is necessary to take preventive action by legislation. It is highly recommended that every step according to administrative works should be taken to control administration more efficiently.
By taking preventive action by legislation, it could spread its application area to the sphere of action in fact like road building. By that it contributes to having the authority concerned take serious action in planning to construct roads etc. And by that it contributes to enhancing the realization of the public interests and civil interests etc.

영어초록

Road building is destined to take the following steps. Which is enumerated in order as step of basic planning of road building, step of road line decision, step of road zoning decision, step of taking road sites to road zoning decision, step of construction of road building, and finally step of declaration of using road.
It is true that road works sometimes positively and sometimes negatively. The construction of road building hurts our living environment. Thus we need the legal way of deterring road construction according to every step during building road.
Firstly, it is a way of deterring road construction that every decision to the step of road building situation should be tested thoroughly. By that the road building could not go ahead.
The above administrative decisions have the character of discretion, but something which should be taken into consideration in making decision should be taken into consideration and vice versa. If not so, we should say that the decision have the failure in procedure and it can be cancelled via objection.
Secondly, it matters which of the two would be suitable for deterring road construction, ‘suspension of execution’ or ‘provisional injunction’.
When road zoning decision precedes construction of road building, it would be legally impossible to block road building entirely. For the effect of administrative act should not be deterred by way of civil law. Meanwhile we could apply for provisional injunction due to the problems occurred during road building, which doesn’t hurt the effect of administrative act.
But in case of constructing road before road zoning decision, the deed of road building is purely just an action in fact by civil law but an administrative act. So we should say that it is entirely suitable for provisional injunction. In this case the construction of road building should be thoroughly tested because it didn’t pass the gate of scaling between public interests and private interests. Thus unlikely in common cases ‘onus probandi’ should be converted to the authority concerned in that case. The authority concerned should have the burden of proof that the road building doesn’t hurt civil’s private interests in natural circumstances or living circumstances. And the public interests due to deterring the road building should be included to the interests which is protected by provisional injunction.
In the end, it is necessary to take preventive action by legislation. It is highly recommended that every step according to administrative works should be taken to control administration more efficiently.
By taking preventive action by legislation, it could spread its application area to the sphere of action in fact like road building. By that it contributes to having the authority concerned take serious action in planning to construct roads etc. And by that it contributes to enhancing the realization of the public interests and civil interests etc.

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