국가와 지방자치단체간 분쟁발생 원인에 관한 법리적 검토

Abstract

The independence of local government from the state by the execution of local autonomy system began to be secured legally and institutionally. As a result, the autonomy of local government is enhanced and the necessity of mutual cooperation, contradiction of interest or competitive relation between the state and local government are extended, so it may be an inevitable thing that the dispute related to local autonomy increases. This is not a simple theoretical assumption but an inevitable situation appearing in the process of institutionalization of local autonomy, which is proved empirically through dispute cases occurring recently. By the way, the dispute which is inevitable to occur, shall not be regarded just only in the viewpoint of ‘NIMBY’, but it is necessary to respect the parties of the state and local government to the maximum and figure out what is the cause of the dispute exactly. Therefore, in this thesis we reviewed the cause of the occurrence of disputes between the state and local government legalistically. Firstly, local autonomy system cannot be considered as the law and order completely separated from the state, so the participation of the state in local government must be unavoidable in this viewpoint. But the state restricts the autonomy of local government exceedingly by the national agencies by way of advice․recommendation․guidance․request for data submission, right of audit, right of corrective order and cancellation․suspension right, job fulfillment order etc., which can cause the dispute between the state and local government. Secondly, there can occur the dispute between the state and local government by the different construction over the understanding of the essence of the autonomy of local government which is ensured in the constitutional law. Finally, besides these causes of occurrence, the disputes between the state and local government can aroused also by the irrationality of the distribution of authority․function owing to the lack in legislation and system, the want of the system of national policy participation of local government, policy conflict between the state and local government, regional self-centeredness and hasty desire for development, insufficient adjustment body and system for the prevention of the dispute etc. Of course, we cannot know in which form the dispute will occur in future, and there can occur an unpredictable dispute practically. Nevertheless, the legal review of the reason of the occurrence of the dispute is to demand a legislative endeavor to prevent the dispute by grasping and analyzing the cause of the dispute in advance. This paper may be the part of such legislative efforts, and it may be confined to raise more problems instead of solving the problems in the current problem situations. However, we shall have to think of the reason of the occurrence of the dispute between the state and local government through this argument more seriously, and we further hope that we shall be able to highlight the urgent necessity of the attitude and approach to the objective positivism in the recognition of the problems and alternative policy.