머릿말
도로를 개설하고 관리하는 일은 동서고금을 막론하고 행정주체 의 임무로 여겨집니다. 우리나라에서도 도로는 주로 국가나 지방자 치단체에 의해 개설되어 관리되고 있습니다. 이러한 행정에 근거를 제공하고 이를 규율하는 법규를 통틀어 ‘도로법’이라고 부를 수 있 습니다. 이 책은 우리나라의 도로법을 바라보는 하나의 관점을 제안 합니다. 도로법은 도로를 도시를 구성하는 도로인 ‘도시 내 도로’와 도시를 상호 연결하는 간선도로인 ‘도시 간 도로’로 구별하여 각각 의 도로에 관한 행정을 서로 다르게 규율하고 있다는 것입니다. 이 러한 관점에서 바라볼 때 도로법을 바로 이해할 수 있다고 이 책은 주장합니다.
이 책은 2025년 8월 발표한 박사학위 논문 ｢도로법의 이원적 체 계에 관한 연구｣를 수정, 보완하여 펴낸 것입니다. 논문에서 제시한 관점이 도로법을 바라볼 수 있는 유일한 관점은 아닐 것입니다. 이 관점에서 도로법을 바라보아야지만 도로법을 올바르게 이해할 수 있다고 생각하지도 않습니다. 다만, 논문에서 제시한 관점이 여러 사람에게 공유되어 토론된다면 그것을 통해 도로법에 대한 이해가 더 풍성해지고 정확해질 것이라고 기대합니다. 이러한 마음으로 논 문을 다듬어 책으로 펴냅니다.
이 책을 내어놓기까지 많은 분이 도움을 주셨습니다. 지도교수님 이신 김종보 교수님께서는 건설법학에 대한 열정을 몸소 보여주심 으로써 저를 박사과정으로 이끌어주셨습니다. 논문이 진전되지 않 을 때 찾아가 무르익지 않은 생각을 두서없이 말씀드리면 함께 교 정을 거닐며 논문 작성의 돌파구를 열어주셨습니다. 심사위원장을 맡아 주신 이원우 교수님께서는 논리적으로 일관되고 주제가 명확 히 드러나는 논문을 쓸 수 있도록 격려와 지적을 아끼지 않으셨습 니다. 최계영 교수님께서는 저만의 생각에 매몰되어 미처 살펴보지 못했던 부분을 사려 깊게 짚어 주셔서 논문의 완성도를 높여주셨습 니다. 박현정 교수님께서는 제가 논문을 통해 주장하고자 한 바를 효과적으로 전달할 수 있도록 논문의 문장과 구조까지 세밀하게 검 토해 주셨습니다. 이은상 교수님께서는 논문이 처음부터 끝까지 논 리적으로 전개될 수 있도록 또 법률 해석이 과도해지지 않도록 따 뜻하게 조언해주셨습니다. 이 자리를 빌려 깊이 감사드립니다.
변호사로 성장할 수 있는 발판을 마련해주시고 논문 작성이라는 이례적인 도전도 기꺼이 응원해주신 법무법인 지평의 선후배 변호 사님, 지도반 선후배님과 동료 여러분, 건설법학회 학회원, 삶의 본 이 되어 주시는 서울가향교회 식구들, 슬플 때나 기쁠 때나 함께 해 주는 친구들에게도 감사의 말씀을 전합니다. 학위논문을 법학연구 총서로 펴낼 기회를 주신 서울대학교 법학연구소와 출간에 필요한 작업을 해주신 경인문화사에도 감사드립니다. 사랑과 믿음으로 길 러주신 부모님과 언제나 저를 응원해주는 가족 모두에게 이 책을 바칩니다.
목차
머리말
제1장 서 론 ································································· 1
제1절 연구의 목적 ········································································ 3
제2절 연구의 범위 ········································································ 6
제2장 도로의 유형과 차등적 규율 ···························· 9
제1절 서론 ·················································································· 11
제2절 도로의 유형 ······································································ 15
Ⅰ. 도로의 분류 ································································15
Ⅱ. 도로의 유형별 성질 ····················································20
제3절 도로의 차등적 규율 ··························································· 36
Ⅰ. 도로의 개설･폐지 ························································37
Ⅱ. 도로의 관리 ································································53
제4절 소결 ·················································································· 62
제3장 ｢도로법｣과 ｢국토계획법｣의 관계 ··················· 65
제1절 서론 ·················································································· 67
제2절 ｢도로법｣과 ｢국토계획법｣의 연혁 ········································ 69
Ⅰ. 일원적 도로법의 형성과 작용: 1911년~1934년 ·············71
Ⅱ. 이원적 도로법의 형성과 작용: 1934년~1962년 ·············82
Ⅲ. 이원적 도로법의 심화: 1962년~2002년 ························105
Ⅳ. 소결 ··········································································111
제3절 도로법의 이원적 체계 ······················································ 112
Ⅰ. ｢도로법｣의 규율 범위와 대상 ····································112
Ⅱ. ｢국토계획법｣의 규율 범위와 대상 ·····························117
Ⅲ. ｢도로법｣과 ｢국토계획법｣의 관계 ·······························142
제4절 소결 ················································································ 145
제4장 도로 개설 법제의 검토 ································ 147
제1절 서론 ················································································ 149
제2절 ｢도로법｣에 따른 도로의 개설 ··········································· 150
Ⅰ. 사전 계획의 수립 ······················································151
Ⅱ. 노선의 지정･고시 ······················································152
Ⅲ. 도로의 설계 ······························································160
Ⅳ. 도로구역의 결정･고시 ················································164
Ⅴ. 도로공사의 시행 ························································172
Ⅵ. 도로의 사용 개시 ······················································176
제3절 ｢국토계획법｣에 따른 도로의 개설 ···································· 179
Ⅰ. 사전 계획의 수립 ······················································180
Ⅱ. 도로의 설계 ······························································183
Ⅲ. 도시계획시설결정 ······················································191
Ⅳ. 도시계획시설사업의 시행 ···········································198
제4절 소결 ················································································ 208
제5장 도로 관리 법제의 검토 ································· 211
제1절 서론 ················································································ 213
제2절 도로의 유지･보수 ····························································· 215
Ⅰ. 도로의 일반적 유지･보수 ··········································215
Ⅱ. 주요 도로 시설의 유지･보수 ·····································222
Ⅲ. 소결 ··········································································227
제3절 도로에 관한 건축제한 ······················································ 228
Ⅰ. 도로 용지에 대한 건축제한 ·······································229
Ⅱ. 도로 인접 토지에 대한 건축제한 ······························238
Ⅲ. 소결 ··········································································251
제4절 도로점용의 관리 ······························································ 253
Ⅰ. 도로점용허가 ·····························································254
Ⅱ. 도로와 시설의 연결 허가 ··········································265
Ⅲ. 소결 ··········································································269
제5절 소결 ················································································ 271
제6장 요약 및 결어 ················································· 273
제1절 요약 ················································································ 275
제2절 결어 ················································································ 278
참고문헌 280
판례색인 290
