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공공단체의 개념과 성격에 관한 연구
DC Field | Value | Language |
---|---|---|
dc.contributor.advisor | 이원우 | - |
dc.contributor.author | 정우석 | - |
dc.date.accessioned | 2017-07-19T03:33:50Z | - |
dc.date.available | 2017-07-19T03:33:50Z | - |
dc.date.issued | 2014-08 | - |
dc.identifier.other | 000000022050 | - |
dc.identifier.uri | https://hdl.handle.net/10371/128642 | - |
dc.description | 학위논문 (석사)-- 서울대학교 대학원 : 법학과, 2014. 8. 이원우. | - |
dc.description.abstract | 오늘날 행정의 수행자로서 국가의 역할과 관련된 패러다임은 행정의 전담자
(全擔者)에서 행정의 관리ㆍ감독자(管理ㆍ監督者)로 변화된 듯하다. 국가가 행 정의 모든 영역을 담당하기보다는 일정한 영역은 국가 이외에 다른 존재들에 게 맡기고, 국가는 이들이 적법ㆍ타당하게 업무를 수행하는지 관리ㆍ감독하는 방향으로 자신의 역할을 선회하였다고 할 것인데, 이는 지극히 현실적이고, 적 합한 조치라고 할 수 있다. 헌법 제29조 제1항은 공공단체가 국가와 마찬가지로 국가배상책임의 주체 가 되도록 규정하고 있다. 이는 현실 세계에서 국가의 역할을 대신하고 있는 공공단체가 존재하며, 공공단체가 활동하는 과정에서 불법행위가 발생할 수 있 음을 인식하고, 위와 같은 불법행위를 국가의 공무 수행 과정에서 발생한 불법 행위와 동일하게 취급하기 위해 마련된 규정이라고 할 것이다. 또, 행정소송법 제2조 제2항은 행정권한의 위임ㆍ위탁을 받은 공공단체 및 그 기관이 행정청에 포함된다고 규정하고 있는데, 이 역시 공공단체의 활동으 로 사인의 권리ㆍ이익이 침해된 경우, 이를 행정청의 처분으로 인정하여 사인 으로 하여금 이에 대해 다툴 수 있는 길을 열어두고 있는 것이라고 할 것이다. 공공단체는 공익 실현을 목적으로 별도의 법률에 의해 설립되어 일정한 생 활영역에서 국가로부터 독립하여 포괄적인 행정사무를 담당하는 행정주체다. 공익 실현을 목적으로 별도의 법률에 의해 설립되는 법인이라는 점에서 순수 한 사인과는 성격을 달리하고, 일정한 생활영역에서 국가로부터 독립하여 포괄 적인 행정사무를 담당한다는 점에서 자치행정 주체인 지방자치단체와 동일한 지위에 있다고 할 수 있다. 공공단체는 일정한 지역을 기반으로 성립하는 지역적 자치행정 주체인 지방 자치단체, 일정한 기능을 중심으로 설립되는 기능적 자치행정 주체인 협의의 공공단체로 구분할 수 있고, 협의의 공공단체는 다시 구성 형태에 따라 인적 결합체인 공법상 단체, 재산적 결합체인 공재단, 인적ㆍ물적 결합체인 영조물 법인으로 구분할 수 있다. 한편 공공단체가 현실 세계에서 국가의 역할을 대신함으로써, 국가로서는 행정 수행의 부담을 경감하게 되는바, 마땅히 공공단체의 활동을 적극적으로 보장하여 주어야 할 것이다. 이와 동시에 국가는 행정의 궁극적인 책임자로서 ii 공공단체의 위법한 활동을 통제할 책임이 있다고 할 것이다. 즉, 공공단체가 사인의 권리ㆍ이익을 침해하는 활동을 한 경우, 국가는 이를 엄격히 심사하고, 시정하여야 할 것이다. 행정소송법상 행정청은 독자적인 지위에서 자신의 이름으로 처분을 할 수 있는 권한을 지닌 기관을 의미한다고 할 것이다. 공공단체의 기관이 공공단체 의 담당 사무 범위 내에서 구체적 사실에 관한 법집행으로서 공권력의 행사ㆍ 거부, 이에 준하는 행정작용을 하였고, 사인에게 이러한 행정작용의 취소를 구 할 법률상 보호 이익이 인정된다면, 공공단체를 상대로 항고소송을 제기하는 것이 가능하다고 할 것이다. 국가배상법상 공무원은 공법상의 근무관계를 형성하고, 공무를 담당하고 있 는 자를 의미한다고 할 것이다. 공공단체의 임ㆍ직원이 공공단체의 담당 사무 범위 내에서 직무를 집행하였고, 이로 인하여 사인에게 손해가 발생하였다면, 공공단체를 상대로 국가배상소송을 제기하는 것이 가능하다고 할 것이다. 국가가 원하든 원하지 않든 공공단체가 현실 세계에서 국가의 역할을 대신 하고 있는 이상, 공공단체는 행정법의 지배 영역 내로 포섭되어야 할 것이고, 이를 외면하는 것은 헌법에 의해 부여된 국가의 책무를 방기하는 것이라고 할 것이다. | - |
dc.description.tableofcontents | 국문초록
제1장 서론 ··················································································································· 1 제1절 문제의 제기 ································································································· 1 제2절 연구의 목적 ································································································· 3 제2장 공공단체의 개념 ······························································································ 8 제1절 논의의 도입 ································································································· 8 제2절 공공단체 개념의 실익 ·············································································· 11 Ⅰ. 공ㆍ사 법률관계의 구별 ··········································································· 11 Ⅱ. 구체적인 인정 실익 ·················································································· 13 제3절 공공단체 개념의 분석 ·············································································· 20 Ⅰ. 공공단체의 지위 ························································································ 20 1. 행정주체의 개념 ······················································································ 20 2. 행정기관과의 구별 ·················································································· 21 3. 행정주체의 종류 ······················································································ 23 1) 국가 : 시원적인 행정주체 ··································································· 23 2) 자치행정 주체 ······················································································· 23 3) 사인 : 공무수탁사인 ············································································ 27 4. 검토 ··········································································································· 29 Ⅱ. 공공단체의 개념요소 ················································································· 31 제4절 공공단체의 종류 ······················································································· 37 Ⅰ. 공공단체와 지방자치단체의 관계 ···························································· 37 Ⅱ. 협의의 공공단체의 종류 ··········································································· 39 1. 공법상 단체(공법상 사단, 공공조합) ···················································· 39 1) 지역 개발 단체 ····················································································· 41 2) 직업단체 ································································································ 43 3) 협동조합 ································································································ 46 4) 사회 보험ㆍ공제 사업 단체 ································································ 47 2. 공재단(공법상 재단) ················································································ 49 3. 영조물법인 ································································································ 51 Ⅲ. 검토 ············································································································· 53 제5절 기타 개념과의 구별 ·················································································· 56 Ⅰ. 공공기관 ····································································································· 57 1. 개설 ··········································································································· 57 2. 공공기관의 개념 ······················································································ 58 1) 기획재정부장관의 지정 ········································································ 58 2) 공공기관의 지정 요건 ·········································································· 59 3. 공공기관의 종류 ······················································································ 61 4. 공공기관에 대한 통제 ············································································· 62 5. 검토 ··········································································································· 64 Ⅱ. 공기업 ········································································································· 70 1. 개설 ··········································································································· 70 2. 공기업의 개념 ·························································································· 70 1) 경영주체 ································································································ 71 2) 공익 목적 ······························································································ 72 3) 기업성 ···································································································· 72 3. 검토 ··········································································································· 73 제3장 공공단체의 활동에 대한 행정구제 ······························································ 75 제1절 논의의 도입 ······························································································· 75 제2절 공공단체의 활동에 대한 행정쟁송 ························································· 78 Ⅰ. 항고소송의 의의 ························································································ 78 Ⅱ. 항고소송의 소송요건 ················································································· 80 1. 행정청 ······································································································· 82 2. 처분 ··········································································································· 86 3. 법률상 이익 ······························································································ 89 4. 소결 ··········································································································· 90 Ⅲ. 판례의 태도 ································································································ 93 1. 주택건설ㆍ택지개발 사업 ······································································· 94 2. 직업단체의 등록ㆍ면허취소 ··································································· 96 3. 공공기관의 입찰참가자격 제한조치 ······················································ 98 1) 공공기관의 운영에 관한 법률 제정 이전 ········································· 98 2) 공공기관의 운영에 관한 법률 제정 이후 ········································· 99 Ⅳ. 검토 ··········································································································· 101 제3절 공공단체의 활동에 대한 행정상 손해전보 ·········································· 107 Ⅰ. 국가배상소송의 의의 ··············································································· 107 Ⅱ. 국가배상소송의 청구요건 ······································································· 112 1. 공무원 ····································································································· 112 2. 공무를 위탁받은 사인 ··········································································· 115 3. 직무 집행 ······························································································· 116 4. 소결 ········································································································· 118 Ⅲ. 판례의 태도 ······························································································ 120 Ⅳ. 검토 ··········································································································· 122 제4장 결론 ··············································································································· 126 제1절 요약 ·········································································································· 126 제2절 향후 연구 과제 ······················································································· 130 참고문헌 ··················································································································· 132 Abstract ···················································································································· 135 | - |
dc.format | application/pdf | - |
dc.format.extent | 1165818 bytes | - |
dc.format.medium | application/pdf | - |
dc.language.iso | ko | - |
dc.publisher | 서울대학교 대학원 | - |
dc.subject | 공공단체 | - |
dc.subject | 기능적 자치행정 | - |
dc.subject | 항고소송 | - |
dc.subject | 국가배상소송 | - |
dc.subject | 행정주체 | - |
dc.subject | 행정청 | - |
dc.subject.ddc | 340 | - |
dc.title | 공공단체의 개념과 성격에 관한 연구 | - |
dc.type | Thesis | - |
dc.description.degree | Master | - |
dc.citation.pages | vi, 137 | - |
dc.contributor.affiliation | 법과대학 법학과 | - |
dc.date.awarded | 2014-08 | - |
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