권한쟁의심판과 기관소송 및 「지방자치법」상의 소송간의 관계에 관한 소고

Legal disputes between administrative bodies and their institutions generate significant political and policy implications as well as impact the lives of the general population. In particular, the development of local autonomy in Korea is expected to increase the possibility of various legal disputes between the state and local governments, and among local governments and their agencies, and thus the corresponding need for judicial settlement thereof. The current legal system, however, does not guarantee clarity of dispute jurisdiction and there is a blind spot concerning judicial remedies. The purpose of this paper is to review the current legal system and related precedents and propose improvement in adjudication on competence disputes, agency suits and litigation under the Local Autonomy Act. This paper is composed of three chapters. In chapter Ⅱ, adjudication on competence disputes and the agency suits are examined through Constitutional provisions, the Constitutional Court Act, the Administrative Litigation Act, and related precedents. In particular, this paper compares the relationship between the two, focusing on the subjective element and admissibility of a party to the adjudication on competence dispute and the scope of the agency suit. Chapter Ⅲ examines the specifies of litigation between administrative agencies under the Local Autonomy Act, which generally involve suits against local council resolutions, revocation or suspension of a supervisory agencies in relation to autonomous affairs, orders to implement duties for delegated affairs and decisions of the Minister of the Interior and Safety on the jurisdiction of landfills. Based on the review presented in chapter Ⅱ and Ⅲ, chapter Ⅳ suggests the direction for the relationship between the adjudication on competence dispute, agency suit and litigation under the Local Autonomy Act. First, clarifying the forms of adjudication on competence disputes before the Constitutional Court Act is prerequisite. Specifically, the meaning of “state agency” reflecting the decision of the Constitutional Court should be established in law. As regards agency suits, in order to prevent blind spots in the settlement of judicial disputes in relation to adjudication on competence disputes, expansion of the scope of agency suit is required. For lawsuits under the Local Autonomy Act, the legal nature of each case is examined in relation to adjudication on competence disputes and the agency suits to ensure clarity of the complaint requirements and prevent the gaps and omissions regarding judicial remedies. Finally, legislative improvement is suggested.