지방자치법의 이해
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패키지
북카드
키워드 Pick
키워드 Pick 안내
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키워드는 최근 많이 찾는 순으로 정렬됩니다.
작가정보
저자(글) 김재호
현)
- 충남대학교 법학전문대학원 교수
- (사) 한국자치법원연구원 이사장
- 대통령 소속 자치분권위원회 정책자문위원
- 행정안전부 자치분권 사전협의자문단 자문위원
- 대전고등검찰청 상소심의위원회 위원장
전)
- 한국지방자치법학회 회장
- 행정안전부 지방자치단체 경계조정 자문교수
- 교육부 교원소청심사위원회 위원
- 법제처 법령해석심의위원회 위원
목차
- chapter 1 지방자치제도 개관
Ⅰ. 국가행정조직법 ························································································ 15
Ⅱ. 지방자치행정과 국가중앙행정의 관계 ····················································· 17
Ⅲ. 지방자치의 정의 ······················································································· 19
Ⅳ. 지방자치의 개념요소 ················································································ 23
Ⅴ. 지방자치의 구성요소(형태) ······································································ 28
Ⅵ. 지방자치의 존재의의 및 기능 ··································································· 37
chapter 2 지방자치법
Ⅰ. 지방자치법의 개념 ··················································································· 41
1. 실질적 의미 ·························································································· 41
2. 형식적 의미 ·························································································· 41
Ⅱ. 헌법 및 행정법과 지방자치법의 관계 ······················································· 42
1. 개설 ······································································································ 42
2. 헌법상 지방자치의 기본원리 ································································ 43
3. 행정법과의 관계 ··················································································· 45
chapter 3 지방자치(제도)의 헌법상 보장
Ⅰ. 제도보장의 의의 ······················································································· 47
1. 헌법상 지방자치제도 ··········································································· 47
2. 기본권이 아니라 객관적 제도로 보장 ·················································· 49
Ⅱ. 제도보장의 내용 ······················································································· 51
1. 개설 ······································································································ 51
2. 지방자치단체의 존립의 보장 ······························································ 52
3. 지방자치단체의 사무 및 기능(권한)의 보장 ······································· 53
4. 주관적 법적 지위의 보장 ······································································ 55
chapter 4 지방자치단체
Ⅰ. 의의 ········································································································· 63
Ⅱ. 법적 지위 ㆍ 성격 ························································································ 64
Ⅲ. 기본권 주체성 ··························································································· 66
Ⅳ. 종류 ·········································································································· 68
Ⅴ. 기초자치단체와 광역자치단체 ································································· 71
chapter 5 지방자치단체의 성립
Ⅰ. 지방자치단체의 구역 ················································································ 75
1. 의의 ······································································································ 75
2. 구역의 범위의 설정 ·············································································· 76
Ⅱ. 지방자치단체의 주민 ·············································································· 107
1. 주민의 개념 ························································································ 107
2. 주민의 권리 ························································································ 110
3. 행정에 대한 통제 및 감시의 권리 ······················································· 139
Ⅲ. 주민의 의무 ···························································································· 167
1. 개념 ··································································································· 167
2. 비용분담의 의무 ················································································· 167
3. 노역 및 물품제공의무 ········································································ 169
4. 이용강제 ㆍ 이용제공강제 의무 ···························································· 169
5. 기타 ··································································································· 172
chapter 6 지방자치단체의 사무
Ⅰ. 개설 ········································································································ 173
1. 사무의 구분론 ···················································································· 173
2. 자치사무와 위임사무의 구별 ······························································ 174
Ⅱ. 자치사무(고유사무) ················································································ 176
1. 의의 ·································································································· 176
2. 종류 ···································································································· 178
3. 법률관계 / 법적 특징 ········································································· 180
4. 판례 ···································································································· 183
Ⅲ. 위임사무 (단체위임사무) ······································································· 184
1. 의의 ···································································································· 184
2. 법적 성질 ···························································································· 186
3. 특징(자치사무와의 관계) ··································································· 187
4. 법률관계 ····························································································· 188
5. 종류 ···································································································· 194
Ⅳ. 기관위임사무 ·························································································· 196
1. 의의 ···································································································· 196
2. 특징 ···································································································· 200
3. 법률관계 ····························································································· 203
4. 종류 ···································································································· 209
chapter 7 지방자치단체의 권능(권한)
Ⅰ. 의의 ········································································································ 211
Ⅱ. 자치권의 본질 ························································································· 212
1. 고유권설 ···························································································· 212
2. 수탁권설 ···························································································· 213
3. 전래권설(자치위임설) ········································································ 213
4. 결어 : 제도적 보장설 ·········································································· 214
Ⅲ. 자치입법권 ····························································································· 216
1. 조 례 ··································································································· 217
2. 규칙 ···································································································· 254
Ⅳ. 자치조직권 ····························································································· 257
Ⅴ. 자치행정권 ····························································································· 258
Ⅵ. 자치재정권 ····························································································· 259
1. 의의 ···································································································· 259
2. 지방자치단체의 수입 ·········································································· 260
3. 자주재정의 확보 ················································································ 266
chapter 8 지방자치단체의 기관
Ⅰ. 의의 ········································································································ 269
Ⅱ. 地方議會 ································································································· 273
1. 개설 ···································································································· 273
2. 법적지위 ····························································································· 273
3. 權限 ···································································································· 279
Ⅲ. 지방자치단체의 장 ················································································· 287
1. 법적지위 ····························································································· 287
2. 권한 ···································································································· 291
Ⅳ. 지방의회와 지방자치단체의 장의 관계 ·················································· 310
1. 상호독립 ····························································································· 311
2. 상호협력 ····························································································· 311
3. 상호견제 ····························································································· 312
Ⅴ. 지방의회와 지방자치단체의 장의 관계에 대한 제언 ······························ 322
chapter 9 지방자치단체에 대한 국가의 관여 (국가와 지방자치단체의 관계)
Ⅰ. 기본관계 ································································································· 325
Ⅱ. 행정적 관여수단 ····················································································· 328
1. 모든 사무유형에 대해 인정되는 수단 ················································· 329
2. 자치사무에 대해 인정되는 수단 ························································· 351
3. 기관위임사무에 대해 인정되는 수단 ·················································· 355
Ⅲ. 입법적 관여수단 ····················································································· 364
Ⅳ. 사법적 관여수단 ····················································································· 365
1. 행정심판 ····························································································· 365
2. 행정소송 ····························································································· 368
부록
■ 지방자치법[시행 2017. 7. 26] [법률 제14839호, 2017. 7. 26, 타법개정] ·· 373
■ 정부 제출(2019. 3. 29) 지방자치법 전부개정 법률안 내용 검토 ·············· 426
■ 지방자치법(2019-03-29 정부제안 지방자치법 전부개정법률안 전문) ······ 431
책 속으로
지방자치제도라 함은 일정한 지역에서 그 지역의 주민이 주민의 복리에 관한 사무, 재산관리에 관한 사무 등을 그들 자신의 책임으로 자신들이 선출한 기관을 통하여 직접 처리하게 함으로써 지방자치행정의 민주성과 능률성을 제고하고 지방의 균형있는 발전과 아울러 국가의 민주적 발전을 도모하는 제도이다. 그것은 국민자치를 지방적 범위 내에서 실현하는 것이므로 지방행정에 직접적인 관심과 이해관계가 있는 지방주민이 그것의 처리에 참여한다면 자연히 민주주의가 육성, 발전될 수 있다는 “풀뿌리 민주주의”를 이념적 배경으로 하는 것이다.
지방자치는 민주주의와 정치적 다원주의를 전제로 지방의 공동 관심사를 자율적으로 해결하고 주민의 자치역량을 배양하여 국민주권주의와 자유민주주의라는 헌법이념을 실현하는 제도이며, 이러한 지방자치의 헌법적 보장은 국민주권의 기본원리에서 출발하여 주권의 지역적 주체인 주민에 의하여 자기통치를 실현하는 것이다.
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[ 저자서문 ]
1.
“지방이 살아야 국가가 산다. 지역의 발전이 국가의 발전이다”라는 시대적 명제는 지방자치의 당위성을 국민들에게 인식시키고 지방의회와 단체 장을 지역 주민이 직접 선출한다는 성과를 도출하였다. 그러나 이후 그들 일부의 무능과 부패, 밑에서 위로의 결정과 집행에 대한 회의가 드러나면서 주민의 냉소적 무관심과 참여의식의 추락은 위의 명제가 단순한 선언적 의미에 머무르는 현상으로 나타났다. 현재 226개의 시 ㆍ 군 ㆍ 구 기초자치단체 중 약 80개가 소멸될 위험성이 있다는 한국고용정보원의 ‘한국의 지방소멸 2018년 보고서’는 국민을 불안하고 걱정 스럽게 하고 있다.
1949년「지방자치법」의 제정 이후 1991년의 부활과 1995년의 직선제 도입 으로 대략 30년 가깝게 이어져 오고 있는 지방자치시대의 우여곡절은 발전보다는 답보의 과정을 보임으로써 우려와 실망의 시각을 확대시키고 있다.「지방자치법」 제정 이후 주민보다는 제도 ㆍ 권한에 치중한 60차례의 개정은 지방자치의 발전에 기여하지 못한 면이 있다. 주민의 지방자치에 대한 체감도와 신뢰도는 낮아지고 중앙정부에 대한 의존도는 높아지는 현실은 지방자치의 한계가 무엇인지를 확인 하는 정도에서「지방자치법」의 이해가 멈춰있는 상황이다.
지방자치의 한계를 극복하는 방안의 모색이 이 책의 기획의도이다. 재정과 권한 및 인구가 수도권에 집중되어 가는 상황에 대해「지방자치법」은 어떤 극복 책을 제시할 것인가. 우선은 저출산 ㆍ 고령화로 인한 지방의 소멸, 인구 ㆍ 자본의 수도권 집중 등 지역 간의 불균형과 대립, 이에 따른 사회의 양극화와 국가의 위기에 대한 최선의 해결방안을 법이론과 판례를 통해 제시하고 그것이 지방자치법의 존재의의와 기능 및 역할의 명확한 이해로부터 출발한다는 점을 인식하도록 하는 것이 글쓴이의 집필목적이 된다.
2019. 3. 29. 정부가 제안한「지방자치법전부개정법률안」을 참고하여 변화된 지방행정환경에 맞는 주민 중심의 지방자치 실현과 자치단체의 자율성, 투명 성, 책임성의 확보에 초점을 맞추었다. 학자들 간의 학설 다툼, 견해 대립이 중심이 아니라, 주민의 권리로서 주민감사청구권, 주민소환청구권, 주민조례제정권을 중심으로 지방자치와 지역균형발전의 방향을 제시하였다. 이를 위해서는 먼저 현행의「지방자치법」을 쉽게 이해할 수 있도록 정리할 필요가 있다. 이해하고 정리할 수 있어야 적용할 수 있고, 지방분권이 지방자치의 필요조건이며 주민참여가 충분조건임을 확인할 수 있다. 아울러 헌법재판소 ㆍ 대법원의 판례를 최대한 반영하여 대학교재로서 변호사시험뿐만 아니라 각종 국가 및 지방자치단체의 시험에 대비할 수 있도록 하는 것 또한 집필목적이 된다.
2.
우리나라의 지방자치는 1948년 제헌헌법부터 규정되었고 1949. 7. 4. 법률 제32호로 지방자치법이 제정 ㆍ 공포되면서 헌법과 법률상의 근거가 마련되었다.
그리고 법률에 의하여 1952. 4. 25. 시ㆍ 읍 ㆍ 면 의회의원선거가 최초로 실시되었으 며, 이어서 같은 해 5. 10. 서울시 ㆍ 강원도 ㆍ 경기도를 제외한 7개도의 의회의원선 거가 실시되어 지방의회가 구성되었다. 1956. 8.에 제2대 지방의회의원 선거가 실시되었으며, 1960. 12.에 제3대 지방의회의원선거가 실시되었으나 1961. 5. 16. 군사정변에 따라 군사포고 제4호에 의해 지방의회가 해산된 이후 구헌법 부칙 제10 조의 “이 헌법에 의한 지방의회는 지방자치단체의 재정자립도를 감안하여 순차 적으로 구성하되 그 구성시기는 법률로 정한다.”는 규정에 근거하여 1988. 4. 6. 지방의회의원선거법이 새로 제정 ㆍ 공포될 때까지 지방자치제도가 법률상 시행되지 않았던 것이다.
지방자치가 부활되어 본격적으로 시작된 것은 중단 후 30년만인 1990년 개정 ㆍ 제정된「지방자치법」 ㆍ「지방의회의원선거법」 ㆍ「지방자치단체의 장 선거법」 에 근거하여 1991년 지방선거가 실시되면서 부터이다. 1991년에는 정치적 이유 등으로 3월 26일 기초의회의원 선거와 6월 20일 광역의회의원 선거만 실시되었으며, 1995년 6월 27일에는 지방자치단체의 장 및 지방의회의원 선거가 함께 실시되었 다. 지방자치 부활 이후, 1991년부터 2018년까지 총 8기의 지방의회의원과 총 7기의 지방자치단체의 장을 선출하여 현재에 이르고 있다.(지방의회의원 직선 1기 ~ 7기〈1991. 4.~ 2018. 6.〉, 지방자치단체의 장 직선 1기 ~ 6기〈1995. 7. ~ 2018. 6.〉)
3.
지방자치제도라 함은 일정한 지역을 단위로 일정한 지역의 주민이 그 지방 주민의 복리에 관한 사무ㆍ 재산관리에 관한 사무ㆍ 기타 법령이 정하는 사무(헌법 제117조 제1항)를 그들 자신의 책임하에서 자신들이 선출한 기관을 통하여 직접 처리하게 함으로써 지방자치행정의 민주성과 능률성을 제고하고 지방의 균형있는 발전과 아울러 국가의 민주적 발전을 도모하는 제도이다. 지방자치는 국민자 치를 지방적 범위 내에서 실현하는 것이므로 지방시정에 직접적인 관심과 이해관 계가 있는 지방주민으로 하여금 스스로 다스리게 한다면 자연히 민주주의가 육성ㆍ 발전될 수 있다는 소위 “풀뿌리 민주주의”를 그 이념적 배경으로 하고 있는 것이 다.
공업화ㆍ 도시화ㆍ 국제화의 추세가 가속되어 가고 있는 오늘날 우리나라처럼 국토도 협소하고 언어ㆍ 풍속ㆍ 문화ㆍ 생활양식 등도 지방에 따라 현저한 차이가 없는 단일민족국가에서는 오히려 중앙집권의 강화가 바람직하다는 견해도 없지 않지만 지방자치제도는 현대 입헌민주국가의 통치원리인 권력분립 및 통제ㆍ 법치주의ㆍ 기본권보장 등의 제원리를 주민의 직접적인 관심과 참여속에서 구현시킬 수 있어 바로 자율과 책임을 중시하는 자유민주주의 이념에 부합되는 것이므로 국민(주민)의 자치의식과 참여의식만 제고된다면 권력분립원리의 지방차원에 서의 실현을 가져다 줄 수 있을 뿐 아니라(지방분권) 지방의 개성 및 특징과 다양 성을 국가전체의 발전으로 승화시킬 수 있고 나아가 헌법상 보장되고 있는 선거권ㆍ 공무담임권(피선거권) 등 국민의 기본권의 신장에도 크게 기여할 수 있는 제도라고 할 것이다.
이와 같이 지방자치제도는 민주정치의 요체이며 현대의 다원적 복합사회가 요구하는 정치적 다원주의를 실현시키기 위한 제도적 장치로서 주민의 자발적인 참여ㆍ 협조로 지역내의 행정관리ㆍ 주민복지ㆍ 재산관리ㆍ 산업진흥ㆍ 지역개발ㆍ 문화진흥ㆍ 지역민방위 등(헌법 제117조 제1항, 지방자치법 제9조 참조) 그 지방의 공동관심사를 자율적으로 처결해 나간다면, 국가의 과제도 그만큼 감축되는 것이 고, 주민의 자치역량도 아울러 배양되어 국민주권주의와 자유민주주의 이념구현에 크게 이바지할 수 있는 것이다.
민주주의의 본질은 국가권력의 형성 및 그 행사에 있어서 그 근거를 국민적 합의에 두는 것이므로 지방자치가 진실로 민주정치의 발전에 기여할 수 있기 위하여서는 우선 무엇보다도 지방의회의 구성이 당해 지역주민 각계각층의 의견이 민주적이고도 합리적으로 수렴된 유루 없는 합의에 의하여 이루어질 수 있도록 제도화되어야 하는 것이다.
결국 지방자치는 민주주의와 정치적 다원주의를 전제로 지방의 공동 관심 사를 자율적으로 해결하고 주민의 자치역량을 배양하여 국민주권주의와 자유민 주주의라는 헌법이념을 실현하는 제도이며, 이러한 지방자치제의 헌법적 보장은 국민주권의 기본원리에서 출발하여 주권의 지역적 주체인 주민에 의하여 자기통 치를 실현하는 것으로 요약된다(헌법재판소 1991. 3. 11. 91헌마21, 헌법재판소 2009. 3.26. 2007헌마843 참조).
4.
글을 써 책으로 엮는다는 것은 현상을 인식해가는 과정이며 그 확인이다.
그렇다면 이 책은 필자가 지방자치법을 이해하기 위하여 노력하는 과정의 확인이고 그 결과물이다. 연구실 밖으로 몇 번의 행정참여를 통해 얻은 경험은 국가행정 이든 지방행정이든 모든 국민은 지역에 관계없이 인간다운 생활을 할 수 있도록 전개되어야 한다는 인식이었고 그것은 지방분권과 주민참여로부터 출발한다는 확인이었다. 조그마한 책을 부끄러운 심정으로 세상에 내놓았으니 많은 질책이 있을 것이고 감사한 마음으로 쉬지 않고 수정하며 보완할 것을 약속드린다.
끝으로 문헌 및 판례 정리에 도움을 준 충남대학교 법률센터 김권일 박사와 실무의 관련자료를 제공해 준 충남대학교 박사과정 방극봉 법제처 법제관에게 감사드린다. 또한 출판을 지원해 준 충남대학교출판문화원의 김정태 원장님, 실무적으로 도와주신 양광준 과장, 김현순, 김보라 선생께 감사드린다.
2019. 12.
대덕캠퍼스 연구실에서 김 재 호
기본정보
ISBN | 9791165030155 |
---|---|
발행(출시)일자 | 2019년 12월 30일 |
쪽수 | 499쪽 |
크기 |
188 * 257
mm
|
총권수 | 1권 |
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구매 후 리뷰 작성 시, e교환권 100원 적립