법원과 헌법재판소의 관할 비교 ― 권한쟁의심판과 항고소송을 중심으로 ―

초록

Since local governments became autonomous entities in 1988, there have been ever increasing disputes the State or a local government faces with other governments. When conflict of authorities is the object of dispute, the State or a local government can use either the adjudication on competence disputes according to art. 61 of the Constitutional Act or the appeal litigation provided by art. 3 para. 1 of the Administrative Litigation Act. This article aims to analyze the relationship between these two litigation systems. Comparing the cases of the two systems shows that there is no clear border line between them. Attempts to set a criterion and thereby limit the jurisdiction of the adjudication on competence disputes have not been successful thus far. An analysis of the Constitution and the two aforementioned Acts leads to a conclusion that neither of the two systems can claim a priority over each other. Therefore, it should not be regarded as a violation of the Constitution when the state or a local government filing an appeal litigation against a decision of another government on the ground of its illegality. Nor should it be judged as infringing on the jurisdiction of the Constitutional Court. This gives rise to a potential danger of each suit resulting in the opposing decisions. Preventing this risk is important as it is one of the critical factors for maintaining the authorities of the two court systems. This aim can be achieved through the binding effect each court's ruling has upon the parties, other state agencies, local governments, and the courts. The future development of the two systems with regard to disputes between these bodies may draw further attention from the academic and the legal circles.

키워드