공법상 법인에 관한 연구

Abstract

In the public law literature, it is common to recognize the concept of public corporation, but practically, it is common to use the concept of special corporation as public corporations except for the state and local governments. Especially, the expression 'special corporation established under the special law' is widely used in various laws and regulations. This phenomenon suggests two points. First, the distinction between public law and private law is not thorough. The concept of special corporation is more likely to be logically connected to the view that public law is not a law separate from private law, but a special private law. The uniqueness of public corporation lies in the foundation of the uniqueness of public law. Second, existing discussions about public corporation lack practicality. It distinguishes public corporation from private corporation and further distinguishes it as public association, public foundation and public institution, but the criteria and the benefits from distinguishing it like that are not fully explained. It should be able to explain positively about the identity of the public corporation concept to legislative, administrative and judicial professionals. In this regard, the conceptual separation of public corporation from special corporation that includes private corporation as well as public corporation, can lead to a change in practical law, not merely on the theoretical level. For this purpose, this study conducts comparative legal analysis such as Germany, France, UK, and evaluates our current situation, based on the results and looks for institutional improvement plan. The key conclusions can be summarized in the following four points. First, public corporation should be systematically linked with the civil service system. Public officials should be allowed to be placed in public corporations other than the state and local governments, and public officials should assume affairs directly related to the rights and duties of citizens. Second, the system of oversight of public corporation should be improved. It distinguishes between job supervision, office supervision and financial supervision according to the means and degree of supervision, and distinguishes between supervision of professional supervision and supervision of legal supervision, among them, while respecting the autonomy of public corporation and harmonizing the uniformity of legal order and policy needs. Third, the concept of administrative property should be applied not only to the state and local governments but also to public organizations. The effect of restrictions on the acquisition prescribed or restrictions on the disposition to be granted to property provided directly to administrative activities is necessary not only when owned by the state and local governments but also by other public corporations. Fourth, in the state liability Law, public corporations other than the state and local governments should be recognized as the subject of liability. Despite the same nature of work, depending on who is liable to the damage, the state liability law is applicable or not. This is undesirable condition, in that it is a division of law and order.