주민소송으로서 손해배상청구소송에 대한 법적 고찰 - 탄천변 도로공사 판례를 중심으로 -

Abstract

The target of the present resident's suit is limited to the fiscal act of the local government and its officer like expenditure of the public money. Therefore it might be a problem, if the object of the resident's suit would be enlarged under the current local government law. But it might be also another problem to narrow the target of the resident's suit, then the purpose of the resident's suit, which is to pursue the management of local finance and the guarantee of propriety of the budget administration, can not be achieved. In this meaning the korean supreme court decided to enlarge the target of the resident's suit through the method, that the decision of illegality of the former act which has preceded the latter fiscal act may be affected by the illegality of the latter fiscal act. By the decision of the illegality of the latter fiscal act these two aspects might be criteria, in other words the influence of the subject of the nonfiscal act and the influence of the contents of the nonfiscal act. Therefore the illegality of the fiscal act of the local government might be decided by these facts: the relation of the nonfiscal former act and the latter fiscal act, the degree of the illegality of the former act, the identifiability of the illegality of the former nonfiscal act etc. In the case of Tancheon-side road construction the supreme court established the criteria for the possibility of influence of the former nonfiscal act on the latter fiscal act, which is the direct target of the resident's suit. The road construction plan was established not by the present mayor but by the former mayor and the road construction plan itself had no significant and apparent illegality. From the beginning of these two criteria we hope that many following fine criteria would be established.