국가의 항고소송상 원고적격 - 국가와 지방자치단체의 관계에 있어서 - (Nation's Standing to Sue in Appeal Litigation)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 29호 / 213 ~ 230페이지
· 저자명 : 김상태

초록

The autonomous affairs of a local government, although handled under its own authority level or responsibilities, should be controlled under the supervisory authority of the nation, because such affairs must be consistent with the nation’s objectives and missions. However, too much supervision over the autonomous affairs may only end up strengthening centralization, while weakening the local autonomy. Most ideally, therefore, the nation’s supervision should rely on such non-power means as advice, recommendation, and guidance. In this case the nation must have an appropriate legal basis, without which the nation cannot exercise its supervisory right over the local government. Accordingly, if a local government infringes upon the national interest or public interest in performing its autonomous affairs, the nation shall exercise its supervisory right based on the legal basis. However, if such supervisory right cannot be properly exercised, the nation may need to file an appeal litigation against the disposing local government performing autonomous affairs as a defendant.
However, it is arguable whether the nation has standing to sue in the appeal litigation. Until recently it has been a prevailing view that private interest serves as a basis for legal interest, so the nation does not have standing to sue in an appeal litigation, even if the national legal interest is an individual or specific interest. However, there has been a growing emphasis on supervision over legality of administration as well as the subjective nature of an appeal litigation for protection of people’s right. Particularly legal cases establish the principle that the national has legal interest over the local government with respect to the autonomous affairs. So it would be reasonable to assume that the nation has standing to sue a local government as a defendant in an appeal litigation if the local government has made an illegal disposition in performing its autonomous affairs.

영어초록

The autonomous affairs of a local government, although handled under its own authority level or responsibilities, should be controlled under the supervisory authority of the nation, because such affairs must be consistent with the nation’s objectives and missions. However, too much supervision over the autonomous affairs may only end up strengthening centralization, while weakening the local autonomy. Most ideally, therefore, the nation’s supervision should rely on such non-power means as advice, recommendation, and guidance. In this case the nation must have an appropriate legal basis, without which the nation cannot exercise its supervisory right over the local government. Accordingly, if a local government infringes upon the national interest or public interest in performing its autonomous affairs, the nation shall exercise its supervisory right based on the legal basis. However, if such supervisory right cannot be properly exercised, the nation may need to file an appeal litigation against the disposing local government performing autonomous affairs as a defendant.
However, it is arguable whether the nation has standing to sue in the appeal litigation. Until recently it has been a prevailing view that private interest serves as a basis for legal interest, so the nation does not have standing to sue in an appeal litigation, even if the national legal interest is an individual or specific interest. However, there has been a growing emphasis on supervision over legality of administration as well as the subjective nature of an appeal litigation for protection of people’s right. Particularly legal cases establish the principle that the national has legal interest over the local government with respect to the autonomous affairs. So it would be reasonable to assume that the nation has standing to sue a local government as a defendant in an appeal litigation if the local government has made an illegal disposition in performing its autonomous affairs.

참고자료

· 없음