「산업입지 및 개발에 관한 법률」과 「산업집적활성화 및 공장설립에 관한 법률」 에서의 의제규정에 관한 고찰 (A Study on Regulations in Form of Legal Fiction in 'INDUSTRIAL CLUSTER DEVELOPMENT AND FACTORY ESTABLISHMENT ACT' And 'INDUSTRIAL SITES AND DEVELOPMENT ACT')

서지정보

· 발행기관 : 동아대학교 법학연구소
· 수록지 정보 : 동아법학 / 48호 / 219 ~ 255페이지
· 저자명 : 이상천

초록

The ‘INDUSTRIAL SITES AND DEVELOPMENT ACT’(We call this simply ‘ISDA’) is aiming at industrial sites and industrial complex and The ‘INDUSTRIAL CLUSTER DEVELOPMENT AND FACTORY ESTABLISHMENT ACT’(We call this simply ‘ICFEA’) is aiming at stimulating indusrial cluster by sophiscating the structures of industrial complex. This means that the above two is playing the purposive role of firing up indusrial cluster.
The above two have so many regulations in form of legal fiction in each of them. This comes from the fact that they take control of administrative authorizationㆍpermission.
The most of them are about legal fiction of administrative authorizationㆍpermission, but some are about concentration effect, some have the middle character.
Of course, although we have different opinions between legal characters of legal fiction of administrative authorizationㆍpermission and concentration effect, we see that legal fiction of administrative authorizationㆍpermission means a administrative deed is ragarded as legal fiction of administrative authorizationㆍpermission and concentration effect means a inclusive administrative treatment is regarded as some treatments of authorizationㆍpermission.
It matters most that some regulations in form of legal fiction means concentration effect or simple legal fiction of administrative authorizationㆍpermission. In case of concentration effect the degree of concentration is denser than that of legal fiction of administrative authorizationㆍpermission. And If legal fiction of administrative authorizationㆍpermission and concentration effect are regulated at the same artricle, firstly the boundary of fiction by that article will be fixed by the article, in case of uncertainty of the boundary the boundary will be varied with this or that.
The above two(‘ISDA’ & ‘ICFEA’) is regulated supra slimly in use of so many cases of legal fiction. Even though it is so simple in appearance the regulation in too simple and slim form could concurr the ambiguity of its meaning. We can see the example in case of ‘ISDA’ Article 45-4 (1) 6.
By the time, the supreme court case says that the legal fiction of legal fiction cann't be recognized by court, and according to the case law the above two regulates each expression in each article like that which includes the case of legal fiction.
In that meaning the two are quite fine and sophisticated regulations.
The above two(‘ISDA’ & ‘ICFEA’) have little flaws in general. But there are rooms for disputes in the future time.
In my thoght It would be useless to regulate so simplely and slimly in a degree of concurring the ambiguity of its meaning by that form of legistlation.
Two much sophisticated regulation could concurr the contradiction between the articles, but could avoid the big flaw in legistalation.
The ambiguity of meaning in regulation leads to the violation of costitutional law, and the interpretation of the law would be the legistlation itself in fact.

영어초록

The ‘INDUSTRIAL SITES AND DEVELOPMENT ACT’(We call this simply ‘ISDA’) is aiming at industrial sites and industrial complex and The ‘INDUSTRIAL CLUSTER DEVELOPMENT AND FACTORY ESTABLISHMENT ACT’(We call this simply ‘ICFEA’) is aiming at stimulating indusrial cluster by sophiscating the structures of industrial complex. This means that the above two is playing the purposive role of firing up indusrial cluster.
The above two have so many regulations in form of legal fiction in each of them. This comes from the fact that they take control of administrative authorizationㆍpermission.
The most of them are about legal fiction of administrative authorizationㆍpermission, but some are about concentration effect, some have the middle character.
Of course, although we have different opinions between legal characters of legal fiction of administrative authorizationㆍpermission and concentration effect, we see that legal fiction of administrative authorizationㆍpermission means a administrative deed is ragarded as legal fiction of administrative authorizationㆍpermission and concentration effect means a inclusive administrative treatment is regarded as some treatments of authorizationㆍpermission.
It matters most that some regulations in form of legal fiction means concentration effect or simple legal fiction of administrative authorizationㆍpermission. In case of concentration effect the degree of concentration is denser than that of legal fiction of administrative authorizationㆍpermission. And If legal fiction of administrative authorizationㆍpermission and concentration effect are regulated at the same artricle, firstly the boundary of fiction by that article will be fixed by the article, in case of uncertainty of the boundary the boundary will be varied with this or that.
The above two(‘ISDA’ & ‘ICFEA’) is regulated supra slimly in use of so many cases of legal fiction. Even though it is so simple in appearance the regulation in too simple and slim form could concurr the ambiguity of its meaning. We can see the example in case of ‘ISDA’ Article 45-4 (1) 6.
By the time, the supreme court case says that the legal fiction of legal fiction cann't be recognized by court, and according to the case law the above two regulates each expression in each article like that which includes the case of legal fiction.
In that meaning the two are quite fine and sophisticated regulations.
The above two(‘ISDA’ & ‘ICFEA’) have little flaws in general. But there are rooms for disputes in the future time.
In my thoght It would be useless to regulate so simplely and slimly in a degree of concurring the ambiguity of its meaning by that form of legistlation.
Two much sophisticated regulation could concurr the contradiction between the articles, but could avoid the big flaw in legistalation.
The ambiguity of meaning in regulation leads to the violation of costitutional law, and the interpretation of the law would be the legistlation itself in fact.

참고자료

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