공유수면매립지의 관할에 관한 법적 연구

Abstract

Legal disputes continue between local governments over the jurisdiction of public water reclamed land. But there was no provision under the Local Autonomy Act directly providing the local government with self-governing right over the Public Waters Reclaimed Land. Also, the precedents of the Supreme Court and the opinion of the Ministry of Government Legislation, as considered in totality, recognized the existence of the self-governing authority of the local government over the public waters. This study examined the stages of change and comments in the Constitutional Court’s decision on the determination of the jurisdiction of local governments for reclaimed land so far and suggested its legal improvement. In the case of 2010Hun-Ra2, July 30, 2015, there existed an administrative custom recognizing the maritime demarcation on the topographic map published by the National Geographic Information Institute as the demarcation between different administrative districts in the exercise of the administrative authority over maritime affairs by the local government; second, such administrative custom has been with for a long time. In this case, the maritime boundary must be determined under the equity principles. The Constitutional Court changed of the precedents which Recognized Maritime Boundaries on National Base Map as Customary Boundaries by 2010 Hun-Ra2, July 30, 2015. If there are no principles of common law on the issue, the Constitutional Court is mandated to demarcate sea boundaries under the principles of equity by considering factors such as geographic natural conditions, status of relevant laws, the history of the area, specifics of exercise of administrative authority. In 2015Hun-Ra3 case, the Constitutional Court dismissed Petitioners(Dangjin City, Asan City, Chungcheongnam-do) request for competence dispute adjudication, on the grounds that in the case of land reclaimed from public waters which is subject to Article 4 Section 3 of the Local Autonomy Act amended on April 1, 2009. The jurisdiction of the reclaimed land can only be determined by the Minister of Public Administration and Security, no local government has jurisdictional authority over the reclaimed land until such decision is made. A head of local government who has objection to the decision of the Minister of Public Administration and Security may file a suit with the Supreme Court can exclude the jurisdiction of the Constitutional Court on competence dispute adjudication over the delimitation of reclaimed land. But in according to dissenting opinion, as the case filed pursuant to Article 4 Section 8 of ex-the Local Authority Act and the adjudication on competence dispute in this case differ not only in terms of the subject matter but also the binding power of the decisions, it cannot exclude the jurisdiction authority of the Constitutional Court on competence dispute adjudication. In order to improve the establishment of jurisdiction over public water reclamed lands, dispute resolution standards and the legal process of resolving a dispute must be established under the Local Autonomy Act.