현행 헌법상 준예산제도의 해석 및 입법론

Abstract

This paper discusses how the legal provisions related to provisional budgets should be interpreted. In this regard, other country cases on the legislation and application of legal provisions related to provisional budgets are analyzed, and Korea`s historical changes and experiences in the legislation of constitutions and budget laws are studied. Legal provisions for executing a provisional budget are stated in the constitution in Korea. The constitution stipulates that the National Assembly shall decide upon the budget bill within 30 days before the beginning of the fiscal year and if the budget bill is not passed by the beginning of the fiscal year, the Executive may, in conformity with the budget of the previous fiscal year, disburse funds for some limited purposes until the budget bill is approved by the National Assembly. However, the National Finance Act states that provisional budgets can only be executed in compliance with the provisons of the constitution. Until now, the government and the National Assembly, which operate the provisional budget system, have overlooked this legal shortfall. Taking into account the actual behavior of the government and the National Assembly, this study argues and demonstrates that the provisions regarding provisional budgets in the constitution should be interpreted in the aspect of fiscal democracy. In addition to this demonstration, this study also discusses the need for amending or revising the constitution and the National Finance Act including National Assembly Act in order to resolve the existing problems in the legal system, i.e., provisions regarding special budget resolutions procedures should be enacted in the National Assembly Act as in other country cases such as France and provisions in the constitution limiting the circumstances under which provisional budgets can be executed should be mitigated.