특별지방자치단체의 기본계획에 대한 공법적 과제

Abstract

Today, there is a demand for metropolitan administration beyond the existing district along with the development of transportation and communication, so it became difficult for the existing local government to fulfill such demand alone. Therefore, in the Local Autonomy Act amended in January 2021, a ‘special local government’ was introduced for establishing a system to jointly handle cases that are difficult to be managed by the existing local government structure or where the existing local government structure lacks capacity. In particular, Article 203, Paragraph (1) of the amended Local Autonomy Act stipulates the basic plan of the special local government. This clause was not stipulated in the previous Local Autonomy Act and there was not enough discussion, so a detailed analysis is necessary for a more stable legal application. In this study, legal tasks for the basic plan of the special local government were reviewed under this background. The main content are as follows. First, the target affairs of the basic plan are limited to autonomous affairs and collective delegated affairs, excluding agency delegated affairs. Second, the 「Local Autonomy Act」 imposes the responsibility to establish and implement a basic plan to manage affairs under the jurisdiction to the head of a special local government. However, the process of establishing the basic plan lacks resident participation procedures, so additional legislative supplementation is needed. Third, the binding force of the basic plan on a special local government is recognized, but the binding force on a constituent local government is not recognized. However, there should be mutual harmony between the special local government and the constituent local government while contradictions and conflicts should be minimized, so in practice, the head of the constituent local government is expected to be bound by a request from the head of the special local government. Fourth, “Abwägungsgebot” (the obligation to balance private and public interests) applies to the illegal control of the basic plan, and disposability may be recognized if the basic plan is a binding plan to residents. However, it is difficult to recognize disposability because the scope of affairs, the goal of affairs, and the processing method of affairs are planned for the content of the basic plan. Fifth, the basic plan should include the goal of the basic plan, the period and target area of the basic plan, the scope of metropolitan affairs to be managed by the special local government, the processing method (criteria) of affairs, the type of affairs to be managed by the special local government and the constituent local government (role sharing), the matters regarding financial allocation, etc.