地方自治團體의 公企業 設置 및 運營에 관한 立法論 小考

Review about legislation on the establishment and the operation of Local Governments Public Enterprise

There must be logical set up on the establishment of the concepts of local public enterprise and their business application scale. From this establishment, local government s finance ability would be raised and local economy could be improved, ultimately. I suggest legislative proposals in detail as follows. First, it is desirable to suggest definite basic legislative rules on the permission and the limit of profit business operated by the Local Governments which become primitive conditions on the establishment and the operation of local public enterprise. The legislator s opinions should be expressed especial -ly based on the principles of free competition and tax payment in harmony with Constitution s articles about economic and such Fundamental Rights articles. Second, the lack of clear provision on the definition of local public enterprise on the law in force causes the confusions of the application and interpretation of the law. The specific and rational attempt of rules must consist. Therefore, the definition of term should be prescribed as a title in Local Public Enterprise Law article 2 newly. There must be a new legislative definition that the local public enterprise is all the enterprises operated by the Local Governments directly and indirectly for the purpose of efficient performance of their service based on economic rationality. Third, the application coverage and restriction system of the Local Public Enterprise Law should be broaden to the government-based enterprise and all the profit oriented business. In addition, the standard of the business scale mentioned on its Enforcement Ordinance article 2 should be erased and the small scale enterprise in direct management should be controlled based on the definition of the suitable areas of management style. The possibility of economical Fundamental Right s infringement of an individual by diversification of object business should be excluded by the prescription of sanction rules in the Local Public Enterprise Law to gurantee the effectiveness because it is not enough by mention the prevention effort on shrinkage of common people s economy and on hinderance of fair and free economy order in the Local Public Enterprise Law article 2(3). Fourth, the overlapped regulatory and non- regulatory articles should be excluded and the articles which have external binding force based on a people s Fundamental Rights and affect the legislative relationship between interest conflict group should be selected from the provision in sub- laws would be reflected in upper- laws for the purpose of excluding the defect in the structure of law constitution. For example, the organization and the operation of president recommendation committee under the Local Public Enterprise Law article 58 as a provision of the Byelaws should be defined in the law and because the article on the inspector mentioned in its Enforcement Ordinance article 58(2) is overlapped, the word the inspector or the article itself should be removed. Fifth, for the acquirement of self-regulation, responsibility and specialty on the local public enterprise, the content May be term of office in the Local Public Enterprise Law article 7(2) should be renewed to be Must be term of office . Therefore, its Enforcement Ordinance article 3(1) in case of term of office and 3(2) should be removed.