Abstract ▼ AI-Helper

Industrial complexes refer to a tract of land designated and developed according to a comprehensive plan to collectively install industrial facilities such as factories and support facilities, which are distinguished from planned sites such as "special purpose complexes" and "special zones." This pa...

Industrial complexes refer to a tract of land designated and developed according to a comprehensive plan to collectively install industrial facilities such as factories and support facilities, which are distinguished from planned sites such as "special purpose complexes" and "special zones." This paper examines the "management legislations in a narrow sense," that is, the industrial complex management regulations under the Industrial Cluster Development and Factory Establishment Act (hereafter, ICFEA), among the various industrial complex management legislations. South Korea has systematized and developed its management legislations distinct from industrial complex development legislations. The legal system on management of industrial complexes is complicated as it is dualized into the development-related legislation focused on the Industrial Sites and Development Act and the management-related legislation focused on ICFEA, thus, difficult to harmonize with each other.
The industrial complex management organizations are divided into the authorized administrators that hold the authority of management decisions and management agencies that perform management tasks, therefore, are characterized by having authorized administrators as well as separate management agencies to ensure the expertise and efficiency of management. It can be understood that organizations were diversified to realize the functional self-administrations. Since management agencies are entrusted with management operations from the authorized administrators, they have the status of the authority under the Administrative Procedure Act or the Administrative Litigation Act within that scope.
Management Master Plans (Master Plans for Managing Industrial Complexes) are the basis for the occupancy agreement, and it is necessary to identify their legal nature as there are no legal regulations to control it. When the management master plan is announced, it has the legal effect in combination with the ICFEA that include management guidelines. When a management agency decides to enter into an occupancy agreement according to the management master plan, it directly affects the rights and obligations of the people. It can be argued that management agencies have extensive discretion in formulation of management master plans and entering into occupancy agreements accordingly.
Occupancy agreements are the important legal means of occupancy management and serve as a bridge for efficient ex post facto management. Since it is reasonable to understand the legal nature of the occupancy agreement as a contract under public law, it is necessary to recognize it as a means of realizing cooperative administration and utilize it accordingly.
The fundamental reason for the need to review the legal nature of the occupancy agreement is to devise a means of judicial control over the occupancy agreement. Particularly, the unilateral decisions of management agencies on occupancy agreements require legal control, and the appropriate measures to dispute them is a rescissory action. Therefore, even though the occupancy agreement is understood as a contract under public law, it should be understood that the decision or refusal to conclude or the termination of an occupancy agreement can be contested through a rescissory action.
South Korea has newly established and reorganized various ex post facto management systems in response to real estate speculation in industrial complexes. The purpose of the ex post facto management under the ICFEA is to manage modifications in occupancy agreements and establish an institutional measure that ensures a certain degree of actual occupancy status. The management of modifications in occupancy agreements is carried out as an extension of the occupancy management under the occupancy agreement by maintaining the qualifications for occupancy and fulfilling obligations of occupants. Therefore, the breach of an occupancy agreement or the non-conclusion of an occupancy modification agreement can be the reason for termination of occupancy agreement, which can result in the loss of occupancy qualifications. However, the scope of reasons for termination of the agreement should be limited as it could be applied too widely.
The ICFEA designed a regulatory system that eliminates incentives for market profits as it determined the leasing of industrial sites, early deaccession of industrial sites, and partitioning of industrial sites as typical acts of real estate speculation in industrial complexes. However, the regulatory items have become excessively complex over time to adjust pluralistic and dynamic interests and secure the effectiveness of regulations, which can undermine the legal stability, the essential element of the rule of law. The biggest and direct reasons for the complexification of regulations would be the failure to precisely and clearly identify and determine the object of regulation. Also, another possible reason would be the cases where regulations cannot be properly implemented due to problems in legislative techniques. The uncertainty of regulation can lead to problems from over-regulation or under-regulation. In addition, if these regulations fall under the constituent requirements of punishment, there could even be a problem of contradiction to the principle of nulla poena sine lege. Legislations need to be reorganized to ensure the clarity of regulatory items, and in when regulatory failure emerges, it is also important to closely analyze the causes and supplement/modify the regulatory system to respond to the problem as soon as possible. Through the process, it is important to ensure that the systematic legitimacy of the regulatory system as a whole.

Keyword