주민감사청구 전치주의와 주민소송에 관한 고찰 - 대법원 2020. 6. 25. 선고 2018두67251 판결 및 관련 하급심판결을 소재로 -

Abstract

In the era of full-fledged local autonomy, resident sovereignty is emphasized, and demand for residents' participation in local administration is increasing, and the institutional significance of residents' audit claims and lawsuits is great. However, as described later, resident audit claims and resident lawsuits adopt the pre-resident audit request principle as a requirement (legal requirement). In this paper, residents' audit claims are essential prepositive procedures. In particular, in addition to the formal requirements of Article 16 (1) and (2) of the Local Autonomy Act, the fact that “the handling of affairs violates laws or significantly harms the public interest” should be regarded as a legal requirement for the audit. In addition, if a resident lawsuit meets these requirements, the resident audit request must first meet all the legal requirements of the audit request under Article 16 (1) of the Local Autonomy Act, and if the audit request itself is legitimate, as in this case, it must meet the requirements. After considering our attitudes from various angles and reviewing theories and precedents on the requirements for administrative judgment and administrative litigation, in this case, the lawsuit court should consider there was an “audit result” prescribed in Article 17 (1) 2 of the Local Autonomy Act and dismiss the judgment. In principle, the audit request council established to deliberate on the requirements of the residents' audit request should be regarded as limited in function to review formal requirements such as legal requirements, and the court can immediately file an appeal suit.