지방소멸 위기에 따른 주민의 기본권 보장과 국가의 헌법상 보호의무

This study aims to re-examine the crisis of “local extinction”—the most pressing national challenge facing the Republic of Korea—from a constitutional perspective and to explore legislative and judicial measures to address it. The phenomenon of local extinction, driven by the deepening concentration of power in the Seoul Metropolitan Area and the rapid population decline in non-metropolitan regions, transcends the mere survival of administrative districts. It results in “spatial inequality,” where the enjoyment of fundamental rights is restricted based on one's place of residence, and leads to the erosion of the constitutional system of local autonomy. This paper first analyzes the practical infringement of local extinction on the right to live a dignified life, including the rights to life, education, and mobility. Based on this analysis, the study argues that the state's failure to address the crisis constitutes a violation of the duty to protect fundamental rights under Article 10 of the Constitution. Specifically, it provides a legal basis that such inaction violates the “principle of prohibition of undershooting (Untermassverbot),” as it falls below the minimum measures required for basic rights protection. Through a comparative legal analysis of the principle of “equivalence of living conditions” in the German Basic Law and the principle of “territorial solidarity” in the French Constitution, this study derives that responding to local extinction is a mandatory constitutional duty rather than a discretionary act of state benevolence. Building on this legal foundation, the study proposes the following improvements:First, legislatively, the state should introduce a “National Minimum Service Standard System” to codify the lower limit of essential public services such as healthcare, education, and transportation. Furthermore, the rigid system of delimiting electoral districts based solely on population size must be reformed to reflect territorial representation. Additionally, fiscal decentralization to practically expand local autonomy and mechanisms for intergenerational rights distribution to protect future generations are necessary. Second, judicially, constitutional review regarding the state's omission should be strengthened, and the scope of administrative litigation for performance (action for mandatory injunction) should be expanded to allow residents to directly demand essential infrastructure. Moreover, active judicial control through competence disputes (Organstreit) should be exercised against unreasonable fiscal allocations that threaten the existence of local governments. Responding to local extinction is a national decision to realize the constitutional value of balanced national development and to ensure a dignified life for all citizens. When the rule-of-law alternatives proposed in this paper are institutionalized, the nation will be able to advance toward a true Social State (Sozialstaat) where substantive equality is realized regardless of one's place of residence.