지방자치단체에 대한 국가통제수단의 법적 문제

Abstract

Chapter VIII of Constitution of the Republic of Korea provides for the local autonomy and the dominant opinion is that it is a systemic guarantee of the essential substance of local autonomy. Therefore, state’s control on local government should be restrained as much as possible for the preservation of local autonomy that is guaranteed by the constitution. On the other hand, the local government’s right of self-government is allowed within the limit of Acts and subordinate statutes, so the necessity of the state’s control on local government is recognized. Therefore, the state’s control on local government needs to harmonize the necessity and limitation. But up to which extent the state’s control should be allowed is a very difficult question. Local Autonomy Act that was profoundly amended in 1988 provides for quite in detail the means of state’s control on local government, in a separate chapter called “Guidance and Supervision of State.” However, there has been criticism that the new Local Autonomy Act has some legislative flaws - such as lack of state’s control on administrative omission – and the Act has been supplementing them through a number of revisions. Despite the revisions, current Local Autonomy Act still has several systematic flaws regarding the state’s control on local government, and some court’s decisions on disputes over its application are problematic as well. This paper will first go over the process of amendments of the Local Autonomy Act regarding the state’s control on local government. Then the current law’s contents and problems are considered with possible solutions. Finally the cases of the Constitutional Court and the Supreme Court are analyzed.