일본의 조정을 통한 국가와 지방간 재정분쟁의 해결 (Japanese Examples of the Settlement of Financial Disputes Between the State and the Local Governments)

서지정보

· 발행기관 : 한국토지공법학회
· 수록지 정보 : 토지공법연구 / 42권 / 607 ~ 627페이지
· 저자명 : 장선희

초록

The financial authority of local governments forms a part of local autonomy which is indispensable for the self-administration and the legal integrity of local governments, and that's the very reason why the financial authority is an important issue in the relationship with their central government. Discords and controversies between the a central government and local ones after the decentralization have been caused by dissenting opinions between them. Financial conflicts today are being created mainly in the issues such as the security of tax sources, the allotment of expenses and the financial disparity between self-governing bodies. But the realities in Korea, when it comes to these issues, leave much to be desired: Korea is poor in legal measures to settle financial troubles between the central government and the local ones. Although the Korean decentralization has not reached the stage in which
the local governments are authorized as exclusive governing bodies, but the local governments, like the central government, are supposed to carry out their administrative responsibility for the welfare of their inhabitants. So the conflicts and discords between the central government and the local ones must be treated as the collision of legitimacy, therefore both confronting parties must be considered as cooperative and interactive partners in a regulating and settling process of their interests.
In case of a financial conflict between the central government and a local one a judicial process based on the Article 61 and 62 of the Constitutional Court Law can solve the problem. This kind of constitutional process to solve the controversies of competence carries an important meaning, when it comes to a legal tool to guaranty the effectiveness of the local autonomy, because, except for it, there are no specific measures for the settlement of financial conflicts. None the less, the Constitutional Court of Korea are not exploiting its judicial potential for the effective settlement of financial conflicts.
Another device to settle the conflicts is a mediation through the Local Autonomy Law, but it can not make up the lack of a specific and effective mediation process to settle the financial conflicts between the central government and the local administrations. The only legal institution that can mediate the financial conflicts under the present law is the Committee for Administrative Consultation and Coordination, based on the Clause 8 of the Local Autonomy Law. But because it is not empowered to settle the conflicts, its effectiveness as an active trouble reliever is questionable, especially when we think of the fact that it mediated only eight cases and rejected two since its establishment on 13, May, 2000. According to the Clause 106 of its implementing ordinances the directors in charge in the central government and the head of the local governments have to execute the decisions of the committee, but it lacks a judicial tool for a compulsory performance.
To appeal to compulsory measures is inferior by far than to make a compromise, and the institutionalization of the conflict settlement must aim at it. It is also of practical use in terms of cost saving. Therefore, the most pressing matter today is to complement the activity of the above mentioned Committee for Administrative Consultation and Coordination. This treatise aims at the discovery of some leading clues for a complement of the related laws, examining the Japanese mediating system for financial conflicts.

영어초록

The financial authority of local governments forms a part of local autonomy which is indispensable for the self-administration and the legal integrity of local governments, and that's the very reason why the financial authority is an important issue in the relationship with their central government. Discords and controversies between the a central government and local ones after the decentralization have been caused by dissenting opinions between them. Financial conflicts today are being created mainly in the issues such as the security of tax sources, the allotment of expenses and the financial disparity between self-governing bodies. But the realities in Korea, when it comes to these issues, leave much to be desired: Korea is poor in legal measures to settle financial troubles between the central government and the local ones. Although the Korean decentralization has not reached the stage in which
the local governments are authorized as exclusive governing bodies, but the local governments, like the central government, are supposed to carry out their administrative responsibility for the welfare of their inhabitants. So the conflicts and discords between the central government and the local ones must be treated as the collision of legitimacy, therefore both confronting parties must be considered as cooperative and interactive partners in a regulating and settling process of their interests.
In case of a financial conflict between the central government and a local one a judicial process based on the Article 61 and 62 of the Constitutional Court Law can solve the problem. This kind of constitutional process to solve the controversies of competence carries an important meaning, when it comes to a legal tool to guaranty the effectiveness of the local autonomy, because, except for it, there are no specific measures for the settlement of financial conflicts. None the less, the Constitutional Court of Korea are not exploiting its judicial potential for the effective settlement of financial conflicts.
Another device to settle the conflicts is a mediation through the Local Autonomy Law, but it can not make up the lack of a specific and effective mediation process to settle the financial conflicts between the central government and the local administrations. The only legal institution that can mediate the financial conflicts under the present law is the Committee for Administrative Consultation and Coordination, based on the Clause 8 of the Local Autonomy Law. But because it is not empowered to settle the conflicts, its effectiveness as an active trouble reliever is questionable, especially when we think of the fact that it mediated only eight cases and rejected two since its establishment on 13, May, 2000. According to the Clause 106 of its implementing ordinances the directors in charge in the central government and the head of the local governments have to execute the decisions of the committee, but it lacks a judicial tool for a compulsory performance.
To appeal to compulsory measures is inferior by far than to make a compromise, and the institutionalization of the conflict settlement must aim at it. It is also of practical use in terms of cost saving. Therefore, the most pressing matter today is to complement the activity of the above mentioned Committee for Administrative Consultation and Coordination. This treatise aims at the discovery of some leading clues for a complement of the related laws, examining the Japanese mediating system for financial conflicts.

참고자료

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