지방자치단체에 대한 감사의 헌법적 한계 - 헌법재판소 결정례의 분석을 중심으로 -

음선필(Eum Sun-pil) 한국공법학회 2009 公法硏究 Vol.38 No.1-1

지방자치단체에 대한 국가적 감사는 어떠한 한계를 가지는가? 지방자치단체의 자치사무에 대하여 감사원의 합목적성 감사는 완전히 배제되어야 하는가, 아니면 완전히 허용된다고 할 것인가?이와 관련하여 최근에 주목할 만한 헌법재판소의 결정이 내려졌다. 특히 2005헌라3 사건에서 헌법재판소는 자치사무의 합목적성 감사의 근거가 되는 감사원법 관련 규정은 헌법에 위반되지 않는다고 판단하였다. 그렇지만 자치사무에 대한 합목적성 감사에 어떠한 한계가 있는가에 관하여 헌법재판소의 다수의견은 명확히 언급하지 않았다.감사원이 지방자치단체의 자치사무에 대하여 합목적성 감사를 실시할 수 있더라도 지방자치권의 본질적 내용의 보장을 위하여 일정한 한계가 있다고 보는 것이 필자의 견해이다. 그러한 한계는 감사원의 지방감사와 지방자치제의 조화에 초점을 맞추어 찾아볼 수 있다고 본다. 감사원의 합목적성 감사는 지방자치단체로 하여금 주민의 복리증진에 더 힘쓰도록 하기 위한 목적으로 실시되고 자치적 감사와 조화를 이루면서 행사되어야 하는 한편, 지나치게 실시됨으로써 자치사무를자기책임성의 원칙에 따라 처리하는 것을 부당하게 침해하여서는 아니 된다.이로부터 ①지방자치의 효율성을 제고하는 것과 무관한 지방감사를 금지하는 목적상의 한계, ②원칙적으로 사후의 감사이어야 한다는 시기상의 한계, ③빈도나 기간 등의 면에서 지방자치권을 존중하여야 하는 방법상의 한계, ④감사의 종류나 대상기관, 감사의 범위 등을 정함에 있어서 감사 목적의 달성에 관련성이 있는 만큼 또한 필요한 만큼 하여야 하는 정도의 한계를 도출할 수 있다고 본다.요컨대 자치사무에 대한 감사원의 합목적성 감사를 완전히 배제하거나 또는 그 반대로 이를 제한 없이 허용하는 것은 바람직하지 않다고 본다. 지방자치의 발전을 위하여 감사원의 합목적성 감사를 ‘합목적적’으로 허용하되 일정한 한계를 설정하는 것이 합당하다고 본다. 물론 이러한 한계의 명문화는 입법론의 몫이 될 것이다. This paper deals with limitations of auditing and inspecting local government. It has been a debatable question whether the Board of Audit and Inspection(BAI) is allowed to inspect and examine comprehensively the accounts and the job performances of local government or not. The Constitutional Court has made some important decisions concerning this hot issue. It was decided that some provisions of Board of Audit and Inspection Act, the basis of performance audit of local government, are not unconstitutional on the ground that they don't infringe on the essence of local autonomy(2005Hun-Ra3). But the Court didn't clarify the limitations of performanceaudit of the autonomous matters that evaluates performances and outcomes of policies, and the efficiency and effectiveness of expenditure.This paper, however, tries to find some limitations of performance audit in order not to infringe on the essential parts of local autonomy. Such limitations can be deduced from the harmony of national audit and local autonomy. Performance audit of autonomous matters should help local governments pursue the welfare of localresidents more effectively and be compatible with autonomous audit, while it should not be done to the extent that local administrative matters can not be dealt with in the autonomy of local government. In fact, performance audit should not violate the self-responsibility(self-accountability, Eigenverantwortlichkeit) of the local government.Therefore, performance audit should be done within the limitation of purpose, of timing, of ways, and of degree.In sum, it is desirable neither to reject the performance audit of autonomous matters by the BAI nor to allow it unconditionally. It is necessary to find some limitations of it, which will be clarified by enaction.

선거과정과 헌법재판소 -선거운동 관련 판례의 분석-

음선필 ( Sun Pil Eum ) 홍익대학교 법학연구소 2011 홍익법학 Vol.12 No.1

Election in a liberal-democratic system should be a competitive one, which has institutionally the possibility of choice and the freedom to elect. Competitive election enables competition among candidates and voters` control over them. But, in reality, due to the imperfection of information about candidates and the insufficient capability of voter`s recognition, political process is easily monopolized by political powers. Moreover, the election process itself is, by and large, undifferentiated. It, therefore, must be designed and made up for more political competitiveness. The legislature and the court should bear it in mind. This paper aims to inquire into how the Constitutional Court(hereafter the Court) has played her roles bestowed by the Constitution for two decades, analyzing many cases on election campaign. The Court has at least three functions: Clarifying the meaning of election laws, Counselling the amendment of them, Clearing the channel of political change. In deference to the legislative discretion of the National Assembly, the Court has hesitated to declare unconstitutionality in some cases on election law. While having clarified the meaning of some ambiguous provisions, she has counselled the National Assembly to amend them directly or indirectly. But her job of clearing the channel of political change, to remove barriers to greater political equality, has not been accomplished sufficiently. The writer believes that of most importance are the conviction of the above functions based on the Constitution, the logical reasoning for more political competition, and voters` keen consciousness of unconstitutionality of electoral process for the Court to carry out successfully her duties in the democratic system.

국회 입법과정의 분석과 개선방안 -제18대 국회를 중심으로-

음선필 ( Sun Pil Eum ) 홍익대학교 법학연구소 2012 홍익법학 Vol.13 No.2

In the 18th National Assembly, the ruling party had an overwhelming voting power because the general election for the Assembly was a honeymoon one. It meant that the Executive was naturally able to have a great influence on the Assembly and to take the initiative in the legislative process. According to a statistical analysis on the legislation of the 18th Assembly, however, many bills introduced by the Executive as well as by the members of the Assembly were abandoned while alternatives to them were proposed by the standing committees and the passage`s rate of the Executive`s bills was not so high as expected. In addition, the bills proposed by the assemblymen, though great in quantity, were passed to a slight degree. Concerning legislation by assemblymen, today, much more requested is the improvement for the quality rather than the activation of legislation. The legislative process should be prudent and reasonable in order that legislation may reflect accurately the will of the people and consider their interests carefully. But the 18th Assembly`s legislative process showed the pathological phenomena described as ``violent Parliament``, ``hasty legislation``, and ``bypass legislation``. National Assembly Act (NAA) has been amended for the advancement of the legislative process (May 2, 2012). The key points are as follows: limitation of the power of ex-officioreference of the Speaker, limited permission of filibuster for minority`s free discussion harmonized with majority rule, introduction of fast- track and of automatical reference to the committees or the plenary session for legislative efficiency, strengthening regulations and sanctions for the order of legislative process etc. However, it is regrettable that the pre-regulatory screening system has not been introduced so as to prevent the bypass legislation. Norms as a system is necessary because of human weakness and wickedness. The behavior of legislators can be, to some extent, orientated and regulated by some institutional incentives. What effect these institutional arrangements, introduced just before the 19th National Assembly, can take in the future will be a new research project.

지방교육자치시대의 교육감 선임방식 -정당배제형 직선제를 위한 변론(辯論)-

음선필 ( Sun Pil Eum ) 홍익대학교 법학연구소 2012 홍익법학 Vol.13 No.1

This article inquires into whether the current direct election of superintendents which prohibits any participation of political parties is relevant to the era of local education autonomy. It is necessary to review the current electoral system and its alternatives in terms of appropriateness (Zweckm?ßigkeit) and constitutionality. Various alternatives suggested until now to overcome the problems of the current system, however, also have some weaknesses of violations of the constitutional norms and irrelevance to Korean political reality. The most important factor is who has the decisive power in the superintendent election process, Political parties or the electorate? If political parties participate in the process, it would be natural for them to take the initiative in it. Given the political realities of our political parties, the independence and professionalism of education as well as the political neutrality could be seriously violated. This possibility should be considered evaluating many alternatives. Election of a superintendent as a running mate of the Governor, for example, could subordinate him to the Governor due to the de facto vertical relationships. Such a running mate system, like some variant forms, is therefore not desirable. In the history of our electoral system of superintendent, the current system can be regarded as a development, so it is more necessary to design some institutional complements for the better operation. For the direct election without parties` participation moves the decision power in the election process from the political parties to the electorate, if the political neutrality of education is ensured well, In order to minimize the problems of the current electoral system, the following components should be complemented: inspiring electorate`s interest in the superintendent election among many elections held simultaneously, adjusting the requirements for candidacy to make superintendent`s role fulfilled sufficiently, checking random candidacy according to the properties of the election, rationalizing the election campaign costs, ensuring the electorate`s freedom of choice and the candidates` equal opportunity to compete, and reinforcing representativeness. With regard to these, the requirements for candidacy and the methods of nomination, campaign, voting and determining winners are to be designed prudently. Among them, candidacy requirements and the election campaign are the components to be complemented urgently. Meanwhile, methods of voting and determining winners are to be conceived with sufficient time. The writer thinks that the best alternative is a supplementary vote system which is a candidate-centered, preferential plurality/majority system. In this system, voters are asked to mark not only the most preferred candidate but also the next preferred one. If no candidate achieves an absolute majority of first preferences, all candidates except the two leading candidates are eliminated and their votes reallocated according to the second, third and so on preferences expressed. The candidate with the highest number of votes is declared elected.

선거의 완전성

음선필 ( Sun Pil Eum ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.3

Nowadays is more emphasized assessing the quality of elections. Electoral integrity,as an instrumental concept for this, helps to understand the electoral process from amacro perspective. It, as an evaluation concept, also makes it possible to identify theproblems of the electoral institutions and to find the direction of solving them byevaluating elections regularly. The roles of the participants in the election including theElection Commission, political parties, media organizations can be found in this process. Election integrity is fundamentally a matter of political trust. Because it is upon theconfidence of citizens in the electoral process and the political process. Therefore, stillmore important is the attitude that respects the judgment of the court and theperformance of election officials than the creation of new institutions in order toimplement the election integrity. In addition, there should be the authenticity of thesystem reformation, and be ensured the transparency and accountability of the electoralmanagementWell established is the overall legal framework for electoral integrity in Korea. However, some institutional improvements are urgently necessary. They are concernedwith campaign finance, media coverage, election laws regulating the freedom ofexpression including political campaigning, and delimitation of the constituency. A clear and detailed legislative framework for conducting elections must beestablished through statutory law, either in a comprehensive code or through a set oflaws that operate together consistently and without ambiguities or omissions. Electorallaw should be established at a high normative level so that it is insulated from regularamendments that could undermine the plans of electoral participants and, especially,that electoral law should not be amended for a substantial period of time prior to anelection. In addition to the legal basis of the election integrity, very demanding is the enactmentand implement of codes of conduct to support the election rules. In particular, importantare the Code of Ethics of the parties and candidates, and that of media organizations. The concept of electoral integrity can be used as a tool to measure the developmentof elections in Korea. In assessing the elections, it is needed to measure the integrity ofthe elections on a regular basis, as well as to analyze the election behavior and resultssuch as changes in the political power, voters`` behavior and changes in the political partysystem. If the integrity of elections grows up in completeness, it means that democracydeepens itself in Korea.

「건강가정기본법」 개정안에 대한 입법평가

음선필 ( Sun-pil Eum ) 홍익대학교 법학연구소 2021 홍익법학 Vol.22 No.2

The Framework Act on Healthy Families aims to contribute to the implementation of healthy families. However, there are attempts to radically change this in the 21st National Assembly. The main grounds for the revision of the Act are the arguments that the concept of family should be changed and the concept of home should be deleted in order to support the various living communities in the blind spot and eliminate the discrimination against them. But these claims are not true. The revised bills deliberately remove the definition of family, which will lead to the redefinition of it in the executive legislations or the other act(s). Otherwise, the definition of family will be confirmed by the interpretation of the courts and the scholars. Removing the concept of family results in the denial of family order in civil law and also the confusion of norms. In addition, the bills regard healthy family as an ideology and intentionally exclude it so that the social functioning of the home might be undermined. As a result, the bills do not have healthy families, but only democratic and equal diverse families. The amendment would make effectively a kind of anti-discrimination law that forbids any discrimination on the grounds of family forms. Some provisions of the bills may be the legal basis for claiming that same-sex partnership (civil union) and same-sex marriage should be effectively permitted. This amendment is a very tricky attempt that leads to the legalization of civil union and same-sex marriage through the interpretations of the government and of the judiciary.

이른바 준연동형 비례대표제에 관한 헌법적 검토 - 국회 정개특위 선거제도 개편안을 중심으로 -

음선필 ( Eum Sun-pil ) 홍익대학교 법학연구소 2019 홍익법학 Vol.20 No.2

The reform plan for the Parliamentary electoral system proposed by the Special Committee for Political Reform on April 2019 aims to increase the proportionality of the current electoral system and to allow assemblymen to be elected in the wastelands of political parties. This is expected to lay the foundation of multi-party system in Korea. However, under the limitation of the number of assemblymen(three hundreds), setting the seat linkage ratio at 50% by the compromise between parties has made the seat allocation formula very complicated. As a result, the original purpose of introducing a mixed-member proportional representation system, in which parliamentary seats are tied to the percentage of voters' support for different parties, can not be realized fully. While the Proposal of the Committee may be called a quasi mixed-member proportional system), it is actually not a true (mixed-member) proportional representation. Combined with the president-centered governing structure, it might be simultaneously a trigger of a new development and the confusion in Korean party politics and parliamentary politics. Particularly, the best loser system which enables the best loser in the districts to be elected as a proportional member again will result in the impairment of the purpose of proportional representation. All in all, it is clear that the reorganizing plan will bring about the institutionalization of multi-party system, but it is rather unclear that Korea's party politics, parliamentary politics and the function of the governing structure will be really further developed. Therefore, it is necessary to consider carefully what kind of results multi-party institutionalization will bring about at the current level of Korean politics. Although, as an alternative to the current parliamentary electoral system, the mixed-member proportional representation system of German Bundestag is the best model, more practicable and recommendable is the mixed-member majoritarian system in which the ratio of seats between nominal tier and list tier is at least 3: 1. Also it is urgently needed to recommend the candidates democratically and rationally, and to accumulate the experience of the open list which allows voters to express their own preferences for candidates.

헌법상 정치권력구조의 재구성 - 대안으로서의 균형형 대통령제 -

음선필 ( Sun-pil Eum ) 홍익대학교 법학연구소 2018 홍익법학 Vol.19 No.2

This article aims to find the problems of the whole political power structure including the government form and try to design a systemic consistent government structure without any contradiction between the composing components. The political power structures are composed not only of the form of the government, but also of other constitutional political systems including the electoral system, the party system and the parliament system. Therefore, in order thar the political power structure might realize to the maximum extent democratic representativeness, legitimacy of procedure and responsibility politics, each component must be combined suitable for its own function. From the functional point of view, the electoral system should pursue political participation and political control; the political party system and the parliament system political competition; the government form check and balance”. Considering the importance of prompt national policy decisions due to the geopolitical structure of South Korea, the government form of the presidential system is still acceptable. In such a point, it is desirable to take a balanced presidential system which means, in a sense, limited presidential system. For this system, it is necessary to reorganize the powers of the president and the National Assembly for the equitable allocation of constitutional powers, and to reconstruct the electoral system and the party system for democratic allocation of political powers. In March 2018, President Moon proposed a constitutional amendment along with a tremendous cause of overcoming so-called the 1987 system. However, according to the proposal, the president's power is still not scattered or restricted. On the other hand, a new power structure which combines the presidential system with the proportional electoral system may bring about a large change in the relationship between the president and the Assembly.

동성애·동성혼의 헌법적 수용에 대한 비판

음선필 ( Eum Sun-pil ) 홍익대학교 법학연구소 2017 홍익법학 Vol.18 No.3

Several constitutional amendment bills suggest to add explicitly sexual orientation to the grounds for anti-discrimination in the equal clause, and change equality of the sexes into (gender) equality” as the requirement for establishment of marriage and family life. Such suggestions practically legalize homosexuality and futhermore recognize same-sex marriage. The constitutionalization of homosexuality and same-sex marriage has been tied with the establishment of the discrimination prohibition law that had been tried several times but to fail finally. Those who support homosexuality take steps to defend it actively or prohibit the acts of discrimination passively. It is dubious that homosexuality can be a human right. Though homosexuality is guaranteed as the freedom of general behavior, it should be restricted (banned) if it is against public order and morals (Sittengesetz). It is not desirable to accept homosexuality into the constitution without national consensus on it. It has been an important issue whether homosexuality is indeed within the protection scope of equal right or the principle of equality. The writer does not recognize sexual orientation as a ground for anti-discrimination, and does not think that sexual orientation is included in the sex”in the equal clause. It is unnecessary to establish a separate provision of “gender equality”, in addition to the general equality clause. Instead, it will be enough to establish, in the general equality clause, a new provision that the state should strive to improve unfair discrimination and make every effort to realize the substantial equality of the sexes. For the overall judgment of same-sex marriage, it is necessary to evaluate it from points of view of the value of marriage and family, and of human worth and dignity, as well as from the perspective of individual freedom. Practically speaking, gay marriages have little value for raising the dignity of human beings and the public interest. It, therefore, can not be under the special protection of the state prescribed in the Constitution. Same-sex marriage or the other forms of cohabitation need some legal protection in the dimension of social security, but they are not to be constitutionalized as types of marriage and family life.

체제전환과 법교육 - 헝가리의 경험 -

음선필 ( Eum Sun-pil ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.4

The regime of a state is a system of rules. Regime change(regime transition) brings about, more or less, fundamental changes in the standards and ways of life in the community. Such a regime change is followed by serious political issues and legal tasks. Therefore the role of law is very important in the course of regime transition and law related education is necessary for the institutionalization of the transformation. Nowadays law related education is understood as a part of the democratic civic education. This paper aims at knowing what lessons we can get from the democratic citizenship education of Hungary which experienced a regime change in a relatively short period. Hungary was the first country which abandoned the socialist system in the eastern Europe in the 1990s. However, it is questionable whether the Hungarian regime transition has been institutionalized in the norm and in the practice. Many scholars point out that Hungary has failed to equip the young generation with the liberal democratic values. In other words, it can be said that the youth have not received civic education including law-related education enough to be well-equipped democratic citizens. When the reunification of South and North Korea comes to be a reality, it will be urgent to prepare a system of law-related education for North Korean residents in order to facilitate a regime change in the regions of North Korea. To do so, it is very important to equip the North Korean living now in the South Korea as potential teachers of law-related education for North Korean residents in the future.