Case on the Inspection of Local Governments by the Board of Audit and Inspection

[20-1(B) KCCR 41, 2005Hun-Ra3, May 29, 2008]

A. Background of the Case

In this case, the Court decided that the purposeful inspections carried out by the Board of Audit and Inspection of Korea on local governments' autonomous affairs did not violate the essence of the right to local autonomy.

The Board of Audit and Inspection, the defendant, announced in a press release on April 18, 2005, that, "The Board of Audit and Inspection will place its monitoring teams at local governments from May for one year, to strengthen the inspection of duties, and plans to inspect the execution of budgets, etc. at 250 local governments nationwide by mobilizing inspection officers on a large scale in order to thoroughly correct chronic maladies in the public administration of local governments." It then conducted inspections of the plaintiffs, which were local governments including Gangnam-Gu Office (hereinafter referred to as "plaintiffs") from June 13 to August 30, 2005, and gave warnings to some local public officials, requested the prosecutor to investigate them, accused them or required the relevant local governments to impose disciplinary action against them as a result of its inspections (hereinafter referred to as "inspections related to this case"). With respect to the measures taken by the Board of Audit and Inspection, the plaintiffs filed a petition for the adjudication of competence disputes over this case with the Constitutional Court, arguing that the inspections related to this case, including the purposeful inspections of local governments' autonomous affairs, infringed on the essence of the right to local autonomy of the plaintiffs.

B. Summary of the Decision

The Constitutional Court rejected the petition for adjudication of competence disputes, for the following reasons.

In light of the specific stipulations in Article 24 Section 1 Item 2 and Articles 32, 33, 34 and 34-2 of the Board of Audit and Inspection Act related thereto (hereinafter referred to as "provisions related to this case"), authority to request a person who has authority over human resources to take disciplinary action, etc. is included in the scope of the right to inspect duties of the Board of Audit and Inspection; it may inspect not only illegalities but also unfair practices, and there are no limitations on the nature or kind of affairs of local governments in the

provisions related to this case. Therefore, inspections relating to this case including not only lawful inspections but also purposeful inspections irrespective of affairs delegated to local governments or local governments' autonomous affairs were based on the Board of Audit and Inspection Act, and were not conducted without legal authority. Furthermore, the provisions related to this case shall not be deemed to have violated the essential matters of the right to local autonomy by excessively restricting the inherent authority of local governments to a nominal extent, when taking into account the meaning that the Constitution provides for the Board of Audit and Inspection of Korea as an independent external inspection agency, the fact that the central government maintains a cooperative relationship with local governments, pursuing the shared objective of promoting the welfare of the people and residents by balancing the efficiency of the public administration of the central government and independence of the public administration of local governments, the reality of local government finance which is largely dependent on national finance, and the necessity of external audit and inspection due to the limitations of local governments' own audit and inspection, whose independence or specialty is not guaranteed. Accordingly, the inspections related to this case based on the provisions related to this case shall not be deemed to have violated the right to local autonomy of the plaintiffs, in violation of the Constitution.

With respect to this, Justices Lee Kang-Gook, Lee Gong-Hyeon and Kim Jong-Dae delivered an opinion in which they argued that as far as the prescribed part "inspection of affairs of local governments" under Article 24 Section 1 Item 2 of the Board of Audit and Inspection Act was interpreted as including the purposeful inspections of local governments' autonomous affairs, such inspections were unconstitutional within the scope thereof because they infringed upon the essential matters of the local autonomy system, as local governments were highly likely to be diminished to subordinate administrative agencies of the central government if the Board of Audit and Inspection of Korea conducted purposeful inspections of local governments' autonomous affairs, and that the purposeful inspections among the inspections related to this case infringed on the right to local autonomy of the plaintiffs as they were conducted based on the aforesaid provision, which was interpreted to be conditionally unconstitutional.

C. Aftermath of the Case

There were critical opinions pointing out that this decision did not clearly mention what limitations were imposedon the purposeful inspections of local governments' autonomous affairs (Eum Sun-Pil,Constitutional Limitations of Inspections of Local Governments), or that purposeful inspections of local governments' autonomous affairs that might be regarded as the inherent affairs of local governments should not be permitted (Lee Gi-Woo,Limitations of Inspections of Local Governments by the Board of Audit and Inspection of Korea; Kim Nam-Cheol,Government Agencies' Authority to Supervise or Monitor Local Governments; Kim Yong-Hoon,The Right to Local Autonomy of Local Governments and Inspections by the Board of Audit and Inspection of Korea).

Subsequent to this decision, the Board of Audit and Inspection of Korea continues to conduct inspections of local governments based on the provisions of the Board of Audit and Inspection Act.