지방자치단체에 대한 국가의 감독과 그에 대한 사법적 통제― 법치주의와 지방자치의 균형 및 조화를 위한 사법부의 역할을 중심으로 ―

Abstract

It has been 24 years since local autonomy began in Korea. In the meantime, Korea has made a considerable progress in local autonomy. In the early stage, efforts focused on securing the jurisdiction of the local government from the state, and building an independent domain of the local government. In order to contribute to the realization of the spirit of the Constitution and the happiness of the people's lives, the local autonomy system, which has been steadily settling beyond 20 years of implementation, needs to be combined with new perspectives. In this study, as a part of such an attempt, in order to harmonize the two legitimacy of the local administration through the supervision of the state, namely, the enhancement of the rule of law in the local administration and the guarantee of the local autonomy. After examining the current status of the system, I examined the role of the judicial power as an actor to play an important role in balance and harmony. The Local Autonomy Law prescripts many supervisional measures, such as guidance and support(§166), right of correction of unlawful or unjust orders(§169), right to order governor of local government to implement duties(§170), right to audit and inspect(§171), and the right to request a reconsideration of local council’s resolutions(§172). There are also some means of appeal by local governments in response to each supervisory measure. However, there is a problem that it is difficult to judge whether the affair is autonomy affair or state affair. And the standard of differentiation is based on legitimacy control, and purposefulness control. In this regard, legislative settlement will be the ultimate solution, but in the earlier stages, interpretation of provision will play an important role in conflict resolution. In the interpretation of the relevant provisions, it is more important than to focus on whether it is autonomy affairs, or delegated affairs, and legitimate control, or purposefulness control, whether the disposition of the local government is actually illegal or not. In order to do this, it seems necessary for the Supreme Court to adjust the scope of the state supervisional authority through interpretation from the viewpoint of the harmony of the rule of law and local autonomy. It is important to prevent the damage caused by local government through the control of the state, and it is also necessary to correct the mistake of the state through the assurance of the legal remedies of the local government. I would like to emphasize the importance of the role of the judicial power.