도로법의 이원적 체계에 관한 연구 : '도시 내 도로'와 '도시 간 도로'의 구별을 중심으로

도로 건설·관리 관련 도로법과 국토계획법의 이원적 체계를 분석했다.

If the laws governing administrative actions related to the construction and management of roads are collectively referred to as road law, then Korea's road lct is characterized by a dual structure. This is because there are two separate laws—the Road Act and the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act")—that comprehensively regulate these administrative actions. However, the scope of administrative actions regulated by the Road Act and the National Land Planning Act is unclear. In other words, the relationship between the two laws within the public law framework for constructing and managing roads remains undefined.

This dissertation seeks to clarify that relationship and present a theoretical perspective necessary for interpreting, applying, and improving Korea’s road law. The dual structure of road law suggests that the legislature classified roads into two types and intended to regulate the administrative actions for each type separately. In public law, the classification of roads serves to effectively regulate administrative actions and ensure that roads function optimally. Roads are therefore classified based on similar characteristics and functions of administrative actions, resulting in a distinction between intra-urban roads and inter-urban roads.

Intra-urban roads are constructed as part of urban formation through urban planning, whereas inter-urban roads are major arteries connecting cities, planned via broader spatial frameworks. Given this distinction, the Road Act can be understood as legislation governing inter-urban roads, while the National Land Planning Act governs intra-urban roads. However, whether the Road Act governs inter-urban roads and the National Land Planning Act governs intra-urban roads must be separately clarified from the perspective of each law's scope of application. A key to resolving this issue lies in the concept of infrastructure defined by the National Land Planning Act.

This Act regulates the establishment and management of infrastructure, including roads. Considering its background, purpose, major provisions, and concepts, the National Land Planning Act defines infrastructure as "public facilities installed in urban areas that are necessary for cities to function." Accordingly, the National Land Planning Act regulates the construction and management of intra-urban roads, while the Road Act regulates those of inter-urban roads. These two laws share the responsibility of regulating road-related administrative actions within the overarching framework of road law.

This dual structure was not present from the beginning but was shaped through milestones such as the enactment of the Joseon Urban Planning Ordinance, the legislation and amendment of the Road Act and the Urban Planning Act. The distinction is evident in the regulation of road construction. The Road Act defines procedures for determining road location and scale in terms of route designation and road zone determination. This reflects the characteristic of inter-urban roads, where it is especially crucial to determine start and end points, as well as key transit areas.

On the other hand, the National Land Planning Act mandates deliberation by an urban planning committee and the active incorporation of citizen opinions when determining road location and scale. This reflects the nature of intra-urban roads, which are designed from the standpoint of urban planning and can be practically defined based on resident feedback. The distinction is also clear in the regulation of road management. Both acts contain provisions on road maintenance, restrictions on building within road zones, and road occupancy permits, without notable differences.

This reflects shared principles: both inter-urban and intra-urban roads should be maintained to preserve their original performance; they must be protected from development activities that threaten their existence; and special use of roads should be permitted only within limits that do not hinder general use. However, differences emerge in regulations concerning adjacent land and facility connections. The Road Act provides a setback zone system to restrict construction near roads and a road connection permit system to control links with facilities.

This reflects the importance of preserving the flow of traffic and protecting inter-urban roads—designed for fast travel by large vehicles—from external disruptions. Meanwhile, the National Land Planning Act uses building line regulations under district unit plans to both restrict construction and control facility connections. This reflects the characteristic of intra-urban roads, which often include sidewalks and prioritize pedestrian environment enhancements. In sum, Korea’s road law is structured as a dual system centered on the Road Act and the National Land Planning Act.

The former regulates the construction and management of inter-urban roads, while the latter governs intra-urban roads. This distinction is embedded in individual provisions related to road construction and management. From the perspective that “roads are classified into inter-urban and intra-urban roads, and their administrative actions are governed respectively by the Road Act and the National Land Planning Act,” both acts should be interpreted, applied, and improved. The significance of this research lies in presenting a theoretical perspective that enables systematic understanding of Korea’s road law. 도로를 개설하고 관리하는 행정작용을 규율하는 법령을 통틀어 도로법이라고 부른다면, 우리나라의 도로법은 이원적(二元的) 체계로 되어 있다는 특징이 있다.

도로를 개설하고 관리하는 행정작용을 종합적으로 규율하는 법률이 「도로법」과 「국토의 계획 및 이용에 관한 법률」(이하 ‘「국토계획법」’)로서 두 개이기 때문이다. 그런데 「도로법」과 「국토계획법」이 규율하는 행정작용의 범위가 각각 어떻게 되는지는 분명하지 않다. 다시 말해 도로의 개설과 관리에 대한 공법적 규율 체계에서 「도로법」과 「국토계획법」이 어떤 관계에 있는지는 명확하지 않다. 이 논문에서는 이를 규명함으로써 우리나라의 도로법을 해석ㆍ적용ㆍ개선하는 데 필요한 이론적 관점을 제시하고자 하였다. 도로법이 이원적 체계로 되어 있다는 사실은 입법자가 도로를 두 가지 종류로 나누어 각 도로에 관한 행정작용을 별도로 규율하고자 하였음을 시사한다. 공법에서 도로를 분류하는 목적은 도로에 관한 행정작용을 효과적으로 규율함으로