지방자치단체 사무 민간위탁의 법적 근거

Abstract

Many local governments are entrusting their public affairs to the private sector due to the expansion of administrative functions and the trend of social state. Entrusting public affairs to the private sector can be defined as entrusting public affairs to a juristic person, organization or private person that is not the state or a local government, an organ thereof, as prescribed by Acts and subordinate statutes. The private sector performs the entrusted affair with his name and responsibility. Entrusting public affairs to the private sector is allowed by THE CONSTITUTION Article 96, Article 118(2) when it is determined by Act. GOVERNMENT ORGANIZATION ACT Article 6(3), REGULATIONS ON DELEGATION OR ENTRUSTMENT OF ADMINISTRATIVE AUTHORITY and LOCAL AUTONOMY ACT Article 104(3) is the general law as legal basis. According to LOCAL AUTONOMY ACT Article 104(3), the head of the local government may entrust a juristic person, an institution or its organ or an individual, with such affairs of those within his/her competence, as are not related directly to the rights and duties of residents, such as investigation, inspection, official approval, and management affairs, under conditions prescribed by municipal ordinance or municipal rule. Following the judicial precedent, these general law can be the legal basis of entrusting local government affairs to the private sector directly and acts complementally to the specific law. In addition, municipal ordinances are an important legal basis of entrusting local government affairs to the private sector. Local governments can enact a specific ordinance to entrust particular affair or a general ordinance to rule overall. There are some ordinances that provides when the head of the local government entrusts his/her affair to the private sector newly, the council has to consent thereto. The judicial precedent considers this as a legitimate control to prevent abuse of entrustment and to guarantee effectiveness and justice. However, this perspective needs to be reconsidered. Although the council already indicated its consent when they legislated specific ordinances, demanding another consent can be excessive interference to the head of the local government. And the national government doesn't need consent of the national assembly when they entrust their affair.