기초지방자치단체가 광역지방자치단체의 위법한 처분의 취소를 구하는 권한쟁의심판청구의 적법성

Abstract

A request for adjudication on competence dispute, in which a local government disputes the illegality of the sovereign disposition of a metropolitan local government and seeks its cancellation, should be dismissed as unlawful since it cannot be regarded as a dispute over the ‘existence or scope of authority’ that can be the subject of a competence dispute adjudication and the respondent's disposition has no possibility of violating the constitutional or statutory authority of the complainant. In the interpretation of the current Constitution and laws, the competence dispute adjudication and the appeal suit may be placed in a situation of jurisdictional competition. Considering that disputes over the ‘existence’ or ‘scope’ of authority are subject to dispute adjudication, when the state or a local government exercises authority that contradicts the authority of another local government, authority dispute trial should be conducted. On the other hand, in cases where it is clear that whether the exercise of the sovereign authority of the state or a certain local government violates legal requirements is the only issue, it is necessary to see that only appeal proceedings are permitted.