민간보조금 교부 조례의 적법 요건 및 법적 한계 — 헌법적 관점을 바탕으로 —

Private subsidies from local governments refer to active funds provided by local governments without compensation in return to create or support the affairs or projects of private corporations, organizations, or individuals in accordance with laws or ordinances using their own resources. The possibility of granting such private subsidies is regulated by the current Local Finance Act, which in principle prohibits the expenditure of public funds to individuals, corporations, or organizations through Article 17. In addition, as an exception, the expenditure of public funds is permitted only in a few cases stipulated in the same article, provided that the relevance of the relevant affairs is satisfied. However, legal disputes between local government heads and local councils continue to arise in legally determining whether local governments can spend public funds such as donations or subsidies to individuals, corporations, or organizations. In addition, in terms of administrative practice, it is difficult to determine whether it is illegal. All of this is due to the generality of the basis provisions and the need for supplementary interpretation. Accordingly, this study provides a legal overview of key contents to promote a basic understanding of private subsidies from local governments through significance, types, and current status. In addition, the constitutional basis and significance of local government ordinances regulating the granting of private subsidies was reviewed in terms of the constitutional guarantee of the local autonomy system, the full authority and self-responsibility of local governments, and the autonomous rule-making authority and autonomous fiscal authority of local governments. In addition, through a survey and analysis of the Supreme Court's precedents accumulated so far, this study looked at the Supreme Court's judgment standards in dispute cases between local governments and local councils, in which the violation of Article 17 of the Local Finance Act was a direct issue. Based on this, this study clearly presented and established the legal requirements and legal limits of the local government's ordinance on granting private subsidies. Specifically, in relation to the interpretation of ‘projects recommended by local governments’ stipulated in Article 17, Paragraph 1, Item 4 and Paragraph 2 of the Local Finance Act, this study presented the Supreme Court's judgment standards as legal requirements for ordinances on the granting of private subsidies. The Supreme Court's judgment criteria include the nature of the organization, the content of the business, the impact on finances, and the perceptions and intentions of residents. Additionally, in relation to the interpretation of ‘individual, corporation, or organization’ stipulated in Paragraph 1 of the same Article, if a local government provides subsidies to individuals, corporations, or organizations that meet general conditions rather than to specific individuals, corporations, or organizations, it can be interpreted as not illegal. This is if we take into account the tendencies of the Supreme Court's precedents, the principles of sound management of local finances under the Local Finance Act, and the constitutional guarantees of the local autonomy system, such as respect for the autonomy of local governments. Therefore, this point was set as the legal limit of the local government's ordinance on granting private subsidies.