교육감의 자율형사립고등학교 지정취소와 교육부장관의 부동의 ― 국가의 자치사무 통제에 대한 불복의 관점에서 ―

The core of the local autonomy system is the guarantee of autonomy. The Constitution and laws determine the legal authority of local governments and the scope of their guarantees. Supervision of the State is also inevitable. Therefore, the degree and scope of supervision of the State must harmonize with the local autonomy. The lawsuit must be guaranteed if local governments are dissatisfied with the State's supervision. This article dealt with how the Local Government can appeal to the Minister of Education's supervision over the cancellation of the designation of autonomous private high schools. The subject of discussion was a case in which the educational head of Jeollabuk-do requested a prior consent from the Minister of Education to cancel the designation of an autonomous private high school A, but the Minister of Education disagreed. First of all, the nature of the cancellation of the designation of autonomous private high schools needs to be examined. It is reasonable to view the authority to revoke the designation of private high schools as an autonomous affair. On this premise, a method of objection is the typical framework of Article 188 of the Local Autonomy Act by filing a suit with Supreme Court against the Minister of Education after enforcing the cancellation of the designation of the autonomous private high school. Also, through interpreting the Minister of Education's disapproval as a corrective order from the competent minister, according to Art. 188 (1) of the Local Autonomy Act, the Local Government directly files a suit against the disapproval with the Supreme Court. Under the current law, the most realistic way is to file an appeals suit directly under the Administrative Litigation Act or to request an adjudication on competence dispute to the Constitutional Court. However, given that the issue is the illegality of the disposition of disagreement or refusal of consent by the Minister of Education, it was judged that the method of appeals suit directly under the Administrative Litigation Act was desirable. From a legislative point of view, it is reasonable to enact the procedure for canceling the designation of private high schools from an enforcement ordinance to a law and to delete the prior consent procedure of the Minister of Education, which makes autonomous affairs nullify. Even if the prior consent procedure is maintained, the scope of its control should be limited to legality. On the other hand, Art. 188 of the Local Autonomy Act needs to be amended to ensure the economy of litigation and autonomy of local governments without litigation gaps.