공유수면 매립지의 경계획정에 관한 공법적 고찰 - 대법원 2013.11.14. 선고 2010추73 판결에 대한 비판적 검토를 중심으로 -

Abstract

Surrounding the determination of the council on landfill sites under the public waters, the local government claimed to the dispute frequently, but the Constitutional Court has solved the matter with the adjudication on jurisdictional disputes since there is no legal basis of the competent decision. To solve this problem in the legislative terms, on April 1, 2009, the Local Autonomy Act was amended as newly established provision as, depending on the deliberations and decisions by the central municipalities of the Dispute Committee, Minister of Government Administration and Home Affairs, determines the local authorities that associated with landfill sites under the public waters, etc. and if you disagree with this decision, you may sue through the Supreme Court. Supreme Court Ruling on the case has the significance of the first decisions of the judiciary about competent decision of the public waters reclaimed based on the revised Local Autonomy Act, and the achievement to determine the maritime demarcations of the National Survey Institute, which was conventionally considered as the only criterion in Jurisdiction Decision, is not only the standard in the landfill jurisdiction decision. Due to this decision, it is highly desirable that it became no longer possible to rule with the decision competent landfill on the basis of the maritime demarcation which does not have legal basis. But the evidence rule on objective and reasonable decision criteria that Local Government Central Dispute Resolution Committee could be conforming in decision making process of the landfill jurisdiction is still deficiency states, and it is necessary to establish complementary legislative because the way to determine, while the process of asking the opinion of residents in Municipality related to shared surface come to life or the consent of local councils was omitted, the jurisdiction by Minister of Government Administration and Home Affairs is the infringement of the local sovereignty of local government as well as the infringement on the autonomy of residents. Furthermore, the fact that the Supreme Court is given the jurisdiction of counter litigation for the determination of Minister of Government Administration and Home Affairs on landfill sites under the public waters municipalities belong in the Local Autonomy Law, Article 4, paragraph 8 could not be escaped from the criticism for infringement of the rights of the Constitutional Court, the Constitution, Article 111, paragraph 1. In addition, presented a reference direction by Supreme Court for the landfill competent decisions in the trial of the case, the judiciary did present the specific standard sentence as well as did limit to freedom of the formation of the Ministry of Government Administration and Home Affairs on the landfill competent decisions, and it had deviated the limits of passive national acts perform that Jurisdiction is having. The revision of the Local Autonomy Act is necessary to solve the dispute concerning by providing feedback of the Municipality related to jurisdiction and defining a reference to understand and cooperate between local government, according to the procedures and criteria as it defined in Laws.