기관위임사무에 대한 국가감독 수단으로서의 대집행소송제도 도입방안 - 지방자치법 제170조의 논의를 중심으로 -

Abstract

Local government may be an independent administrative subject, but local autonomy system is recognized an Act enacted by the nation in the viewpoint of state system itself. As it is the part of the administration of state also in administrative aspect, it cannot be a different law and order entirely divided from the nation. In this side, state's control over Local government can be unavoidable. However, notwithstanding the unavoidability of state's control, it is likely to infringe the right of local autonomy. So state's control has to be exercised legally, and the system to protectㆍguarantee right of local autonomy has to be prepared as well. In relation with this, we reviewed the problem and improvement plan of state's control confined to organ delegated affairs out of the affairs of local government in this study. The state's control over organ delegated affairs is varied, but in this study, we examined order for performance of duty and vicarious administrative execution provided in Article 170 of Local Autonomy Act. Currently there is a bit of doubt that order for performance of duty and vicarious administrative execution may infringe the right of local autonomy of local government secured by constitutional law exceedingly. For after the order for performance of duty, the vicarious administrative execution is exercised without any procedure by a state organ, even organ delegated affairs can be considered as an excessive infringement of right of local autonomy. So in this thesis, we suggested a plan to introduce a reasonable and effective means of state's control together with the protection of instead of a unilateral state's control exercise right of local autonomy. In summary, it is as follows. Even if the head of a local government fails to perform the order for performance of duty, the state organ must not exercise the vicarious administrative execution voluntarily by his one-sided intention. If the head of a local government fails to relevant affairs, a state organ should raise a litigation and demand a trial for the intent to the court to order the performance of relevant affairs. After then, if the court decided that the claim of a state organ had the reason, nevertheless, if the head of a local government doesn't take any measure within the limit of decision, a state organ can execute relevant affairs on behalf of the head of a local government.