행정안전부장관의 공유수면 매립지 관할권 결정을 둘러싼 지방자치단체 간의 분쟁에 대한 헌법재판소의 권한쟁의심판권의 유무

In its decision of July 16, 2020 (2015Hun-Ra3), the Constitutional Court dismissed the petition for a competence dispute filed by a local government on the grounds that the determination by the Minister of the Interior and Safety, pursuant to Article 4(3) of the revised Local Autonomy Act of 2009, constitutes a primary allocation of jurisdiction over reclaimed land, and therefore, a competence dispute may not be filed based on the jurisdiction over the previously existing public waters. However, the fact that the petitioner does not hold jurisdiction over the reclaimed land in question should serve as a ground for dismissal on the merits, rather than a ground for inadmissibility. If there exists a possibility that the respondent may exercise jurisdiction over the reclaimed land in the future, then the petition for a competence dispute is procedurally admissible, and the substantive issue of jurisdiction must be reviewed. Naturally, the petition would be dismissed on the merits at that stage. Furthermore, the question of whether “(3) the future actions to be taken by the respondent, Pyeongtaek City, in the reclaimed land may infringe upon or pose a risk of infringing upon the petitioners’ right to local self-government” cannot constitute the subject matter of a competence dispute. The petitioner did not raise such an issue in its claim. This question merely constitutes a condition of admissibility for substantive review. While it may be a relevant issue, it does not fall within the scope of adjudication. This article also addresses the issue arising from the proviso clause of Article 4(3) of the Administrative Litigation Act. This matter serves as a premise for examining the relationship between Article 4(8) of the revised Local Autonomy Act (2009) and competence dispute adjudication. The author argues that the proviso clause has no legal effect. The scope of competence disputes remains unaffected by this provision. Rather, if an administrative litigation based on the subject matter of a competence dispute is introduced through legislation, such litigation would take precedence as a special law. The revised Article 4(8) of the Local Autonomy Act (2009) is not unconstitutional. This is because the scope of competence dispute adjudication is not definitively determined at the constitutional level. The competence dispute system is a constitutional institution, and legislation may establish and regulate the system, provided it does not undermine the essential nature of the constitutional institution. This conclusion stems from the theory of institutional guarantee.