지방자치단체에 대한 국가감독의 법적 쟁점

Abstract

It is quite natural regardless of the constitutional guarantee of local autonomy, that the administration of local governments can be approved within the scope of a national legal system. Consequently, a violation of the national legal system by a local government should be controlled under the supervision of the central government. That is question, how the control of the central government is harmonious with the guarantee of the right of self-governing, because the both externally seem to be contradictory. The issue of this paper is related to the two points, one is the possibility and the limit of the control of the central government, the other is the trend of judicial precedents in the control of the central government. Firstly, there is one question on the possibility of the central government’s control to an administration of a local government pursuant to the purpose of laws without any specific provision. Local governments’ independence from the State has been legally and systematically secured by putting the local government system in operation. The constitutional guarantee of local autonomy contains that the central government and local governments basically associate on an equal footing. Therefore, it is need of specific provisions as legal authority for the central government’s control to administration of a local government. The Local Autonomy Act provides that the competent central government organs may audit, revoke or suspend the autonomous affairs in cases where a local government violates any provisions of laws. In practice, however, the central government sometimes tries to involve in administrations of local governments without the considerations of the violations. Consequently, the target and possibility of the central government’s control must be specified by the provisions of laws. There is another issue of this paper on the legal limits of the central government’s control to local governments. Even if the central government may have the right of control, the requirements should be limited to the minimum scope for the guarantee of local autonomy. Furthermore, the control of the central government should be subsidiarily done after the self-control of local governments. In conclusion, the legal system of the central government’s control to the local government in the Local Autonomy Act must be changed to be coincide with an equal footing between the central government and local governments. Simultaneously, as the equal and cooperative relation between the central government and local governments become more common, the traditional trend of judicial precedents attached to centralism has to be changed accordingly.