지방자치단체의 행정소송에 대한 법무부장관의 지휘의 법적 쟁점

Abstract

If Article 6 (1) of the Act on litigation to which the state is a party is interpreted as the text, the subject of the Minister of Justice's command includes autonomous affairs among administrative litigation of local governments, which is a question of excessively restricting local autonomy guaranteed by the constitution. This is because the command of a lawsuit is an intervention on the purpose. In addition, the command of a lawsuit is not just a guide or a recommendation, but forms a duty of life regardless of the intention of the command object. However, previous studies have already argued that this provision is unconstitutional, and in the past, a bill on litigation with local governments as a party was proposed, but this provision has remained the same since it failed to pass the Legislation and Judiciary Committee due to difficulties in classifying affairs. I think the reason is that the traditional theory of institutional guarantee and the Korean Constitutional Court apply the principle of minimum guarantee based on the prohibition of infringement of essential content on the issue of restrictions on autonomy. Looking at this provision through the principle of excessive prohibition, the unity of administrative actions, which is the original purpose, is clearly problematic, and the purpose of it is inevitable to control institutional delegation affairs, and it seems to regulate administrative litigation on autonomous affairs collectively. Even though the order to perform duties can promote the uniformity of administrative actions related to institutional delegation work, sacrificing local autonomy is beyond the minimum of infringement, and there is no institutional consideration for local autonomy, such as the issue of bilateral agency. He added legislative suggestions, hoping that this will be reflected in the future revision of the litigation command system. On the other hand, if the wording of this article violates local autonomy, it is desirable to ultimately resolve it through the enactment and revision of the law, but from the standpoint of the practice, it is not possible to wait for the enactment and revision of the law. It can be interpreted that administrative litigation under Article 6 of the Act on litigation to which the state is a party does not include autonomous affairs litigation due to the legislative purpose, purpose, and other logic and systems of the Act on litigation to which the state is a party. In addition, since the current practice is directing litigation for administrative litigation on autonomous affairs according to the text, the means of dispute for local governments to object to such command disposition were also reviewed. In theory, since the disposition of litigation against local governments is expected to be recognized, it is possible to argue through appeal litigation, administrative trial, and the planned objection system, and it is possible to judge authority disputes regardless of disposition.