헌법적 관점에서 본 지방출자출연법의 법적 과제 - 기관 운영의 자율성 보장을 중심으로 -

Abstract

In the past, consistent and systematic discipline and common application standards for local government-invested or –funded institutions did not exist, so establishment approval and operational management and supervision matters were regulated by individual laws. In addition, due to the lack of systematic management at the legislative level for the institutions, various problems such as various recruitment irregularities, poor management, and budget abuse have occurred. Accordingly, in order to eliminate the possibility of causing corruption in the operation process of the institutions and ensure transparency and accountability in the operation of the institutions, the Ministry of Security and Public Administration at the time, which was in charge of discipline of the institutions, legislated the disciplinary matters for the institutions. As a result, a single law called the “Act on the Operation of Local Government-Invested or –Funded Institutions” was enacted on March 24, 2014 and went into effect on September 25 of the same year. However, the Act was buried only in the circumstances of the time and only emphasized transparency and accountability in the operation of the institutions, so it did not pay much attention to the aspects of independence or autonomy in the operation of the institutions. Ultimately, there is a need to legally review the current Act, and this review should be done from the perspective of securing autonomy in the operation of institutions that have been neglected so far. This is because the perspective of securing accountability to prevent moral hazard, such as corruption, and arbitrary and opaque institutional operations has already been largely reflected in the current Act. Accordingly, this study provides a legal overview of key contents for understanding the institutions, including their legal definition, characteristics, background of emergence, and history of legislative regulations. In addition, the constitutional basis for the establishment and operation of the institutions was reviewed from the perspective of the constitutional local autonomy system, the full authority and self-responsibility of local governments, and the constitutional social state principles and regulation and coordination of economic affairs. Furthermore, the guarantee of autonomy was emphasized as a condition for ensuring the efficiency of operating the institutions. Additionally, the current Act, which governs overall matters related to the institutions, including establishment, operation and dissolution, was analyzed focusing on the background, legislative purpose and main contents of the enactment. Finally, based on the above discussion, problems with the current law were identified in terms of strengthening the autonomy of institutional operations and directions for improvement were presented. In addition, a plan to grant autonomy in the operation of the institutions through reasonable and appropriate interpretation of the current law before the revision of the law was also proposed. Specifically, this study reviewed the direction of revision of the current Act in terms of ensuring autonomy in the operation of institutions to solve issues such as re-establishing the overall disciplinary direction of the Act, clarifying the concept and business scope of the institutions, regulating the separation of local government-invested institution and local government-funded institution, and resolving discrimination between government-funded institution and local government-funded institution. And this study proposed that the meaning of 'consultation' in the Act be limitedly interpreted as a formal and red tape act.