지방자치단체의 헌법소원 도입방안

Abstract

The current `1987 Constitution` introduced the Constitutional Complaint system for the first time in the constitutional history. The Constitutional Complaint, which is a subjective right remedy to apply to a special court, could be the core of the Constitutional Court if the public power violates the Constitutional rights of the subject of the Fundamental Right. However, such the Constitutional Complaint system also does not play a significant role in the area of Local Government system revitalized as the current Constitution implemented. In the case of the violation of Fundamental Right or Autonomy of Local Government, it is necessary to examine whether it can be relieved through the Constitutional litigation means of the Constitutional Complaint, whether there is a contact between the Constitutional Complaint in the Constitutional court system and the Constitutional Local Government system. BR The purpose of this study is to propose juridically reasonable ways in relation to the introduction of the Constitutional Complaint system of Local Government. In addition to presenting the interpretation theory of whether or not the Constitutional Complaint for Fundamental Right Remedy of Local Government is possible, this study would suggest a detailed legislative solution for the Constitutional Complaint of Autonomy Remedy of Local Government.BR First, this study would examine whether the Local Government incorporated in the public law is the subject of the Fundamental Right. As the German pluralism and the case of the Federal Constitutional Court in principle deny and exceptionally recognize the subjectivity of Fundamental Right of the public corporation, based on this perception, domestic theories and precedents on the subjectivity of Fundamental Right of Local Government would be analyzed. This study would criticize the case of Constitutional Court in Korea, which has a passive attitude to the recognition of Fundamental Right of Local Government, and would emphasize the resonable conclusion according to individual cases through interpretation.BR Next, this study would propose a concrete legislative plan for the Constitutional Complaint of Autonomy Remedy of Local Government. This study would evaluate the Constitutional Complaint of Local Government in German, which has its positive legal basis in the basic law and the federal law, and would propose the legislative introduction of this system through the amendment of the current Constitution and Constitutional Court Act in Korea. Through the review of the precedent study which would assert the introduction BRand would propose the legislative plan of the Constitutional Complaint of Local Government in German, in the end, this study would assert to require the amendment of Article 111 (1)(the establishment of No. 6) of the Constitution, the amendment of Article 2(the establishment of No. 6) and the establishment of Article 68-2 of the Constitutional Court Act in order to introduce the German Autonomous Complaint.