ScholarWorks@숙명여자대학교

초록

Disputes over public waters, reclaimed land etc. are on the rise, and there are concerns that jurisdictional competition or overlapping rulings between Constitutional Court of Korea and Supreme Court of Korea will occur. In the target judgment, the Constitutional Court decides that the competent local government is determined only after the decision of the Minister of the Interior and Safety is finalized, and until that point, thepublic waters reclaimed land does not belong to any local government. However, since there is a possibility that the jurisdiction over the reclaimed land will belong to other local governments, and the claimants had jurisdiction over public waters before reclamation, the Minister of the Interior and Safety’s illegal decision could infringe on existing jurisdiction over public waters. It is not necessary to conclude that the jurisdiction over reclaimed land disputes has been unified with the Supreme Court due to the amendment of the Local Autonomy Act of 2009. The Supreme Court mainly examines whether the confirmation decision made by the Minister of the Interior and Safety constitutes a deviation or abuse of discretion. Article 4 of the Local Autonomy Act does not clearly stipulate specific criteria for judgment or factors to be considered for the decision of the Minister of the Interior and Safety. The decision of the Minister of the Interior and Safety regarding the relocation of the reclaimed land site is bound to the deliberation and decision of the Central Dispute Mediation Committee of Local Government, and it is difficult to say that the Minister of the Interior and Safety creates the jurisdiction of local governments, including the public waters reclaimed land. It is reasonable to see that the decision of the Minister of the Interior and Safety has the nature of confirming which local government the public waters reclaimed land belongs to. In conclusion, I think that the Adjudication of Competence Dispute of the Constitutional Court and the lawsuit under Article 4 of the Local Autonomy Act are compatible. When a local government infringes on autonomy or disputes the existence or scope of its authority, it may be subject to Adjudication of Competence Dispute by the Constitutional Court. In this respect, the discussion on the so-called “subsidiarity of the Adjudication of Competence Dispute” is not valid. In order to comprehensively examine the infringement of local governments’ rights of autonomy, the path for Adjudication of Competence Dispute by the Constitutional Court must be open.

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