공물관리와 주민소송 — 대법원 2016. 5. 27. 선고 2014두8490 판결에 대한 평석 —

The statement in the case law that a street use permit constitutes a financial accounting activity subject to a citizen suit if it realizes the use value of the street regardless of whether it realizes the original function of the street is misleading and needs to be reconsidered in the following two aspects. First, in light of jurisprudence on the public domain, the realization of a street's intended function is always the realization of the street's use value. In contrast, the realization of a street's use value may or may not be the realization of the street's original function. Therefore, a street use permit is always a case of realizing the use value of the street, and furthermore, it is only possible to distinguish when it is a case of realizing the original function of the street and when it is not. If we understand the concept of financial accounting activity as vaguely realizing the use value of a street, it is impossible to conclude that the former is subject to a citien suit while the latter is not. On the other hand, if the concept of financial accounting activity is understood as “solely” realizing the value of the use of the road, the conclusion of the case law may be logically maintained, but an additional question arises as to whether a street use permit for such a purpose is legitimate. Here, it is worth referring to the provisions of Article 30 of the State Property Law, which universal view explains that ‘permission to use public domain for other purposes.’ This provision was originally enacted with the intention of leaving open the possibility of an exceptionally private law relationship for public domain, but over the years, through legislative amendments and case law changes, this permit is now treated as a type of public law relationship, just like a street use permit. In view of the above, it is inevitable to criticize the case law in that it allows an exceptionally private law relationship to be established over public domain through a street use permit without providing any evidence. Second, it is not logical to limit the scope of financial accounting activity subject to a citizen suit to those that are ‘directly’ aimed at handling matters related to the financial accounting of a local government. It is the case law that the purpose of the citizen suit system is to “secure the legitimacy of local governments' financial management and the sound and proper operation of local finances,” and from this, it is inferred that the scope of financial accounting activity subject to a citizen suit should be narrowed. However, it does not logically follow from the proposition that a citizen action is an objective action that can be brought without regard to legal interests that the scope of citizen action should be strictly limited. This logical leap is presumably premised on the recognition that citizen suits are an exception to the rule of appellate suit. While it is not incorrect to understand that appellate suits are the rule and citizen suits are the exception in that appellate suits are generally permitted through the Administrative Procedure Act, on the other hand, citizen suits are permitted only when specifically provided for by law, this framing of the rule and exception is not directly helpful in identifying how citizen suits, which are already permitted through special legislation, relate to appellate suits, which are generally permitted regardless. It is more useful to think of this issue in terms of the primary application of appellate suits and the supplemental application of citizen suits. The reason for introducing a citizen suit and allowing it to be filed regardless of legal interest is that it is difficult to expect that a person whose legal interest has been infringed will file an appellate suit. In other words, if it is sufficiently anticipated that someone will legitimately file an appellate suit, it is not necessary to subject it to a citizen suit; on the other hand, if there are circumstances that make it difficult for anyone to legitimately file an appellate suit, it is necessary to subject it to a citizen suit. From this perspective, the case law's attitude of unconditionally reducing the scope of financial accounting activity is far from being away from criticism. While it is highly likely that local governments will be subject to citizen suits if their actions are for the ‘direct’ purpose of handling financial accounting matters, the scope should not be limited to this, and the possibility that local governments will be subject to citizen suits even if their actions are for the ‘indirect’ purpose of handling financial accounting matters should be left open. The final determination depends on whether it is reasonably foreseeable that an appellate suit will be filed. This relationship between appellate suits and citizen suits is legally similar - though not entirely identical - to the relationship between appellate suits and constitutional appellate.