하천관리 및 물 이용 관련 분쟁해결을 위한 법정책적 과제 - 지방자치단체 상호간의 분쟁해결제도를 중심으로 -

Abstract

In recent years, there is a growing number of disputes between local governments regarding the management of rivers and water use. In particular, disputes on the management of rivers and water use are related to fundamental rights guaranteed by the constitution, including residents' right to life and right of property, and the causes of such disputes are also diverse, such as dam construction, water quality control, water use fees, designation and cancellation of water source conservation areas, relocation of water sources, etc. Thus, the number of aspects of the dispute is increasing, and it is also not easy to resolve them. The disputes cannot be settled only in terms of “regional self-centeredness” or “complicated issues involving a number of government departments”. Efforts to resolve them effectively are needed while respecting local governments as much as possible are necessary, and a system that supports such efforts should be developed. Current dispute resolution systems include an alternative dispute resolution system and a judicial dispute resolution system. The alternative dispute resolution system involves various mediation systems provided by law. However, exclusive jurisdiction between such mediation systems is not recognized, hindering prompt and uniform dispute resolution. Therefore, it is necessary to unify dispute resolution systems that are currently diversified, and efforts to secure the effectiveness of a decision on mediation should be made. In addition, the mediation procedure should be supplemented and practical dispute resolution standards should be prepared for the fairness and objectivity of a decision on mediation. The adjudication on jurisdiction disputes and a lawsuit under the Local Autonomy Act can be considered as judicial dispute resolution systems. First of all, the adjudication on jurisdiction disputes has a systematic significance as a key legal measure to secure autonomy in that the protection of autonomy through administrative litigation under the current legal system is insufficient. However, it is questionable why all disputes between local governments are subject to the adjudication on jurisdiction disputes without asking whether or not a constitutional conclusion is required. The disputes between local governments are legal arguments regarding whether the autonomy of a local government and the exercise of legal authority based on such autonomy are legitimate; thus, they should be subject to administrative litigation rather than the adjudication on jurisdiction disputes. However, there are still grounds for a theoretical argument about whether or not administrative litigation is applicable, so a legislative discussion for stipulating a relevant provision in a relevant Act is necessary.