주민소환투표 대상자의 권한행사 정지에 관한 연구

Abstract

A study is about article 21 the Resident Recall Act and especially this is an issue of the force on resident recall vote claim. Article 21 on the Resident Recall Act provides that where the requirements of resident recall vote claim are satisfied, it will be stopped to exercise the authority of head of a local government and local council members as an object of the vote, during public announcement from a proposal to a result for residents' recall voting by the competent election commission. In addition, article 21(2) provides that in case where the authority of head of a local government is stopped, a deputy carries him/her out as proxy such as a vice-governor, a deputy mayor, a deputy county governor, a deputy head of Gu. Considering issues involved, according to the rule there can be breach of a fundamental right on object of the Resident Recall vote. Hence I think that the rule, which object’s authority of the recall is suspended, is against his/her the fundamental right of officials too much because of overemphasizing the purpose of this rule such as fairness of election. In addition, suspension of authority will cause sudden vacancy in administration. As a result residents’ basic rights could be also violated. Second, comparing with requirements of motion of impeachment in the light of equity of suspension of authority, I think both systems can serve as a comparison sufficiently in substantial similarity. The requirements of suspension on object of the Recall vote are much softer than those of motion of impeachment in this respect. Additionally, while reasons of Resident Recall are about lawful and political decision, those of motion of impeachment are unlawful conduct or behaviors in duties. Grounds for Recall, therefore, are more severe issue of equity in terms of including legitimate and lawful actions. Third, I have considered the possibility of political misuse on the Recall. There are no restrictions on reasons for the Recall claims and initiative requirements also require a very small number of signatures. If the rule allows residents to stop the exercise of object’s authority just because a proposal of the Resident Recall vote is announced, the system of the Residents Recall is politically exploited and likely to be abused by giving a political blow to the object of the Recall or self-interest of particular residents. For example, so far eight Recall votes were conducted and eight to seven cases were not individual corruption but local political dedision such as crematorium building, nucler plant construction, building military bases in Jeju. In my opinion, it is resonable to stop the authority of head of a local government and local council members, when they are against duty or law such as corruption, bribery, criminal offences because these can lead to serious problems of local government like a financial crisis. Thus there is no problem to suspend them from their duties for Resident Recall. However, if the reason for the Recall is not the breach of duty or law, but lawful and political decision, suspending their duties could cause an irrational results. Therefore, the reason for the Recall will be taken into consideration when the suspension is made. In light of this, it needs to legislate for a consideration of the reason of the Resident Recall.