문화유산 보호 조례안 의결에 대한 무효확인소송의 법적 쟁점

초록

The key issue in the subject judgment was whether a local council resolution to delete a provision requiring consultation with the then Commissioner of the Cultural Heritage Administration (now the Korea Heritage Service) regarding development activities conducted outside historical and cultural environment preservation zones was unlawful. While the Supreme Court ruled that the local council’s resolution was lawful, doubts remain about several points argued by the Supreme Court of Korea. A lawsuit seeking a declaration of the invalidity of a draft ordinance under Article 192(8) of the Korean Local Autonomy Act is a special type of litigation characterised by abstract norm control. Recognizing interests in this type of litigation is inappropriate. It allowes the supervisory authority to control the enactment of ordinances, thus maintaining the unity of the national legal order and ensuring legality. However, it should not be viewed as an inter-agency lawsuit, because it is not a dispute between agencies within the same administrative entity. Furthermore, the subject judgment holds that repealing the relevant provision of the ordinance in this case is not unlawful. The ordinance does not contain a provision that is identical to Article 13(3) of the Korean Cultural Heritage Act. Instead, the relevant provision of the ordinance was established to provide a procedure for consulting with the supervising authority regarding development activities outside the historical and cultural environment preservation zone. In this case, adopting the ordinance bill in this case effectively repealed this procedure. According to Article 13(3) of the Korean Cultural Heritage Act, the scope of a historical and cultural environment preservation zone may be expanded under certain conditions. In such cases, consultation with the National Heritage Agency is required, and the agency decides on whether to grant permission according to prescribed procedures. Eliminating this relevant provision of ordinance would prevent the supervising authority from exercising its statutory right to consult on development activities outside the preservation zone. Furthermore, it would eliminate the necessary procedures to protect designated cultural heritage from development activities occurring outside the designated area. Therefore, adopting this ordinance would be unlawful. Although the court dismissed the alternative claim because the Korea Heritage Service did not request reconsideration, it is unrealistic to expect the Service to issue such a directive for an identical ordinance. As this case concerns the protection of important cultural heritage, the judgment requires meticulous reasoning. However, from the perspectives of administrative litigation theory and the characteristics of the Local Autonomy Act, the arguments presented in the judgment are significantly flawed in their approach to the key issues at hand.

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