국가의 지방자치단체에 대한 보조금 지원 거부에 관한 소고 ― 대법원 2011. 9. 29. 선고 2010두26339 판결을 중심으로 ―

초록

A recently released Supreme Court Decision declares that a refusal to grant subsidies by the Minister of Knowledge Economy does not count as a disposition for appeal litigation. According to the Supreme Court, only local governors have right to apply for the state subsidies; although companies who want subsidies for the relocation to a provincial area from the Metropolitan Area can apply for subsidies provided by local governments, they have no right to apply for the state subsidies. As the plaintiff company is not eligible for the state subsidies, the Minister's refusal cannot be viewed as a disposition rejecting the application. There are, however, a few questions on the Court's reasoning. When the Special Act on the Balanced National Development and the accompanying decree and ministry direction are put together, they read as granting the Minister an authority to give subsidies to local governments. The governors stand not as organs of the state government but as representatives to the local governments. Local governments are exercising their autonomy by giving subsidies to applicant companies; the state government is indirectly providing financial support to those companies by giving subsidies to the local governments. Consequently, the Supreme Court decision results in the denial of judicial review on the state governments excercise of public power over local governments. However, such excercise can also be accepted as a disposition. The term 'disposition' means an act or rejection by an administrative agency which has direct impact on 'rights and obligations' of 'citizens'. But the 'citizens' can be interpreted widely as to mean any natural/legal person other than the one the agency works for. As long as the state agency is exerting its power on a local government, the latter can be included in the category of citizens. Also, 'rights and obligations' are understood as 'legal interests', i.e. legally protected interests. As long as a local government's authority is legally affected by the State government's act or refusal to act, this act or refusal can be said to have impact on legal interests of the former. Therefore, the Minister's refusal to grant subsidies should be recognized as a disposition. Accepted as a disposition, it can be challenged not only by the local government but also by the applicant company. Both the local government and the company, one as subject to the disposition and the other as third party to it, have a standing in the appeal litigation. As the refusal can also be brought into the Constitutional Court by means of adjudication on disputes over authority, it may result in jurisdictional overlap and subsequent discordance between the Supreme Court and the Constitutional Court. The adjudication should best be limited to resolving problems of existence or scope of authority between governments or agencies. But as long as the Constitutional Court finds itself entitled to solve disputes between governments where the illegality of a disposition is the main issue, the Supreme Court can avoid discordance by respecting the other Court's conclusion, that is, if there is any preceding decision on the same disposition.

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