독일의 지방재정구조와 지방자치단체 파산제도 도입 논의에 관한 약간의 고찰

The purpose of this paper to get some implication in the process of to debate whether to operate municipal bankruptcy system in Germany through considering the basic structure of local government financial scheme and their discussion about it. The Germany is a “federal” Republic which is composed of sixteen states. Each state does have full autonomy financially independent of the Federation. Also the local government has financial autonomy, though the level is far beneath and Germany Constitution secures the local government have it specifically. The local government can make income through tax, public fee, economic activity for profit, creating benefit from lease. Among this, revenue from tax and various public fee are classified as public income and the other are classified as private income. The bankruptcy of person(natural/juristic) is regulated by the federal bankruptcy act (Insolvenzordnung), not by state law in Germany. The Article 12 of German bankruptcy law says that all property of the Federation and states are not supposed to the subject of bankruptcy procedure and also, the public juristic person is not supposed to the subject of the procedure by the states law if it is controlled by the state. According to this, local government is to prohibited to be bankrupt. However, some commentators and scholars have been insisted to adopt the bankruptcy system for municipality even though the federal bankruptcy act and local autonomy act of each state provide to forbid liquidate the estates of local government. The assertion to institute to municipal bankruptcy system was begun to question “how to deal with local government have liabilities exceeding the value of total assets?” I indicated serious problems of municipal bankruptcy system, practically and these must be solved before the legislation of the system. And it show that careful access to municipal bankruptcy system is needed.