판례를 통해 본 지방자치단체에 대한 국가감독의 법적 쟁점

In local autonomy, the supervision of the state is identified as an infringement of autonomy and is often perceived as very negative. But legitimate state oversight and infringement of local autonomy should be distinguished. Unless the nature of local autonomy is understood as an inherent right completely disconnected from the state, national supervision is the natural embodiment of local autonomy in the area of local autonomy where overlapping with the state is inevitable. The problem is that the normative limits are not recognized as important, even though national supervision has inherent limitations in itself through the constitutional guarantee of local autonomy. In other words, the essence of the normative problem of national supervision in local autonomy is not a matter of its acceptability, but of its extent and limitations. If state supervision is the innermost part of a constitutionally guaranteed local autonomy, it should not be unconditionally criticized for being a state supervisor, but legitimate state supervision should be protected, as if legitimate autonomy should be protected, To do this, it is necessary to approach the issue of state supervision based on an accurate recognition of the normative nature and limitations of state supervision in the local administrative system. Nevertheless, the court's position on the state supervision has been focused on the wording or interpretation of the actual law rather than on the court's correct perception of the local administrative legal principles related to state supervision. and as a result, it is hard to say that it is consistent with the legal ideology or limitations of the state supervision. Examples include rulings that deny the viability of a complaint against a correction order under Article 169 of the Local Autonomy Act(Supreme Court Case No. 2016Chu5148, decided on October 12, 2017) or those that deny the right to direct supervision of the state of a local government(Supreme Court Case No. 2014Chu521, decided on September 22, 2016). Apart from the concluding positions of these rulings, it is regrettable that consideration of the local administrative legal principles for reaching a conclusion is insufficient. Since local autonomy is a normative system guaranteed by the Constitution, the scope and limitations of state supervision of local governments should also be sought from the constitutional guarantee of local autonomy. In particular, legislation on state supervision that conforms to the ideology of constitutional guarantee is important in local autonomy systems. Still, the local autonomy laws of Korea fall short of embodying and realizing the constitutionally guaranteed ideology of local autonomy, as is the relevant legal system of state supervision. Such lack of legislation is the limit of judicial power, which is inherent in interpretation and declaration of the law, and as a result, it is the reality of local autonomy today that judicial power, which should be at the forefront of the relief of the rights to local autonomy, still justifies the patronizing state-centered local autonomy. Therefore, considering the legislative status of Korea, which is striving to limit the ideal implementation of local autonomy through legislation, it is necessary to take active consideration of the constitutional guarantee of local autonomy from a judicial polemic point of view, rather than the judicial power being locked in the actual law. It is necessary to clarify the normative content and limitations of desirable state supervision, and this is the realization of the rule of law in the local autonomy area.