지방자치단체의 권한쟁의심판 개선방안

Abstract

Under the current Constitution, the adjudication on competence disputes has been newly adopted by expanding its scope of coverage to include not only competence disputes between state organs but also those between a state organ and a local government as well as between local governments. The adjudication on competence disputes has been recognized as one of the ‘three most important constitutional litigation procedures’ along with the adjudication on the constitutionality of a law and the adjudication on constitutional complaints. Nevertheless, its role has been limited in the sphere of local autonomy which was reinstated with the enforcement of the current Constitution. In this regard, there lies a necessity to review whether it is possible to use the constitutional litigation procedure of adjudication on competence dispute to guarantee the autonomy of local government, and whether there is any point where the local autonomy system under the Constitution and the adjudication on competence disputes, among the types of constitutional adjudication, meet each other. Based on the perception on such issues, this study aims to analyze the issues of the current system of adjudication on competence disputes and to suggest measures for the improvement thereof for the purpose of advancing the local autonomy system. This study set the ultimate goal of presenting measures to improve the current system of adjudication on competence disputes of local government, and to achieve the goal, it used every available perspective including legislation and interpretation theories. That is, this study set the local government at the very center stage of research, and then presented problems of the current system on adjudication of competence disputes and measures to improve the system from a comprehensive perspective to guarantee the autonomy of local governments and vitalize the local autonomy system. In conclusion, this study presented a number of measures mainly centered on local governments to improve the system of adjudication on competence disputes. First, this study argued for the necessity to constitutionally clarify the details of the local autonomy. It is a widespread problem across the sphere of the local autonomy system that the substance of the autonomy granted to local governments pursuant to the Constitution has not been clearly defined and established as a sole and exclusive one. Second, this study proposed the exceptional introduction of strict review criteria. Under the moderate review criteria combined with the theory of institutional guarantee, it is structurally hard to expect that the authorities of the local government are protected by the Constitution. Third, this study proposed a broad interpretation of an ‘infringement on competence’. By broadly interpreting such requirements for eligibility to adjudication on competence disputes, we should prevent any case where adjudication on competence disputes is denied on the ground that the case does not meet such eligibility requirements. Fourth, this study argued for the necessity to adopt the adjudication on passive competence disputes. This study recognized the necessity to take a positive and forward-looking attitude toward the issue in the sense that the adjudication on competence disputes can be used in a wider range of areas. Fifth, this study argued for the necessity to recognize the third party standing in constitutional litigation. In consideration with the fact that it is practically unlikely for the head of a local government to request for the adjudication on competence disputes against a state organ, the local council needs to be allowed to perform the proceedings of adjudication on competence disputes on behalf of their local government. Finally, this study emphasized the need to recognize the capacity of local government’s organs for being party. To this end, the adjudication on competence disputes between the local council chairman and the local council members needs to be institutionalized as a new adjudication type with the amendment of the Constitution and the Constitutional Court Act.