교통안전시설 설치ㆍ관리사무의 법리적 검토

다국어 초록 (Multilingual Abstract)

Under the Article 3 of the Road 「Traffic Act」, the head of local autonomous government such as the Mayor of Seoul has the authority to install traffic lights and safety signs in case that he acknowledges the necessity of increased traffic safety facilities to reduce the risk of traffic accidents on the road and to facilitate traffic safety and flow. But under the Article 147 of 「the Road Traffic Act」 and the Stipulation 86 of 「the Enforcement Ordinance of the Act」, the authority of the head of local autonomous government is entrusted to the director of the regional police agency / the chief of the regional police station by compulsion. Because the authority of the local government head to establish and manage the traffic safety facilities, which is stipulated in the Act, is compulsively entrusted to the police office by 「the Enforcement Ordinance of the Act」, local governments bear the cost concerned but cannot accommodate the needs for its residents convenience. Thus, the conflicts between local governments and regional police offices are inevitable. In this paper, in order to solve the conflicts, I study the legal issues such as the legal nature of establishing and managing traffic safety facilities, the illegality of compulsory entrustment of the head s authority to the police office, the possibility of the head of local autonomous government directing and supervising the police office, the legal foundation of traffic regulation screening and the control method and their alternatives.
First of all, from a viewpoint of the regulation forms of the Act and its Ordinance, the legal nature of establishing and managing traffic safety facilities is an autonomy affair of local government. Therefore it is illegal for the central government to entrust the authority of local government compulsorily to the director of regional police agency / the chief of regional police station under 「the Enforcement Ordinance of the Act」 without any reflection on the will of the local government head who is subjective of the authority, because the Ordinance deviates from the limits of norm-making entrusted by its mother law(「the Road Traffic Act」). Even though the Stipulation 86 of the Ordinance is unconstitutional, the Stipulation 86 is in effect until the jurisdiction court verifies the illegality of the Stipulation as the first consideration of administrative litigation or until the constitutional court declares the Stipulation as unconstitutional through authority dispute judgement. In this case, because the director of regional police agency / the chief of the regional police has the status as a sub-administrative organization of the local government head, the local government head can direct and supervise the director of regional police agency / the chief of the regional police on duty regarding establishing and managing traffic safety facilities. On the other hand, 「the Regulation on Establishment and Management of Traffic Safety Facilities」, which is an order of the director of police agency for instructing his sub-organization or policemen to take care of traffic safety facilities established by the policemen, is the administrative regulation, so it is effective internally in police. Therefore, the traffic regulation screening operated by the traffic regulation committee and based on the regulation is not effective externally. Nonetheless, in reality, traffic regulation screening appears to have been operated as like having external effect, so it causes significant problems. In order to minimize and solve these problems, it is necessary for the local autonomous government to establish control system. Thus, I propose, as an alternative, that the local government make and manage the standards for traffic safety facility establishment and the enforcement(in case of non-compliance) process against decision of the regional police agency with regard to the traffic regulation screening in the form of the municipal rule.
On this paper