신생 매립지 관할결정에 대하여 지방자치단체가 제기할 수 있는 헌법재판상의 불복수단에 대한 고찰

In the past, issues surrounding reclaimed public waters were intermingled with disputes concerning maritime boundaries. The Constitutional Court did not distinguish jurisdiction over public waters from that over reclaimed land, adjudicating both based on the "same maritime boundary line." However, this position of the Constitutional Court changed with the application of the amended Local Autonomy Act (Act No. 9577), which came into effect on April 1, 2009. The former Local Autonomy Act (Act No. 9577) stipulated, in Articles 4(3) through 4(9), the competent authority, procedures for determining jurisdiction over reclaimed land, and the methods for challenging such decisions. Consequently, the primary authority to decide the jurisdiction over newly created reclaimed land shifted from the Constitutional Court to the Minister of the Interior and Safety. Under the current Local Autonomy Act, the available legal remedy against the jurisdictional determination by the Minister of the Interior and Safety is filing an action with the Supreme Court pursuant to Article 5(9) of the Act. Regarding lawsuits under Article 5(9), there is a divergence of opinion as to whether they should be classified as agency litigation or appeal litigation. However, considering the litigation system established by the Administrative Litigation Act and its relation to competence dispute adjudication, it can be interpreted as a form of appeal litigation. In addition to filing a lawsuit with the Supreme Court under Article 5(9) of the Local Autonomy Act, another potential means of contesting jurisdictional determinations over newly reclaimed land is filing a competence dispute adjudication with the Constitutional Court. In this context, questions may arise as to whether the admissibility requirements for a competence dispute adjudication are satisfied, and if so, whether such adjudication can coexist with litigation under Article 5(9). The primary admissibility issue concerning competence dispute adjudication is the "infringement of authority." It may be interpreted that only local governments that have made significant financial contributions to the reclamation project could satisfy the requirement of "infringement of authority." Regarding the possibility of coexistence between the two remedies, it can be supported by the following arguments: the legal basis and effects of the two proceedings are different; competence dispute adjudication, unlike constitutional complaints under Article 68(1) of the Constitutional Court Act, does not require the exhaustion of other remedies; and there is no provision in the Local Autonomy Act precluding the filing of a competence dispute adjudication. Furthermore, aside from filing a competence dispute adjudication, relevant local governments may consider requesting a constitutional review or filing a constitutionality-based constitutional complaint under Article 68(2) of the Constitutional Court Act as a means of contesting the jurisdictional determination by the Minister of the Interior and Safety. In such cases, the local governments, as parties to the lawsuit, could argue the unconstitutionality of Article 5(4) of the Local Autonomy Act on the grounds of a violation of the principle of parliamentary reservation and Article 117(1) of the Constitution, and the unconstitutionality of Article 5(9) on the grounds of violations of Articles 101(1) and 107(3) of the Constitution.