한국 지방행정 옴브즈만제도의 발전방안에 관한 연구

Abstract

The modern state has greatly increased in administrative demand over the past. The increase in administrative demand has led to the swelling of administrative power, which brings about various side effects: above all, the rights of people are often damaged by feasance or nonfeasance of administrative power. Indeed, there are various means for saving rights, if people's rights are damaged by the exercise of administrative power, but the ombudsman functions as one of very important means for saving rights today in that it controls administration and saves people's rights. This thesis is aimed to explore the developmental policies for local administration ombudsman in Korea under the recognition of importance the ombudsman has as a system. In terms of research methods, this thesis depends on philological analysis, based on comparative approach. Having the dangerof damaging administrative power, the system of ombudsman is specified in constitution in most of countries. For this reason, the study of ombudsman necessarily requires a comparative one on a national basis. This thesis also utilizes the ombudsman system's organizations, authorities and treatment procedures, etc. of each country as units of comparative analysis. In addition, this studyutilizes books, research papers, ombudsman-related books from each country, annual reports, The Ombudsman of Korea's publications and treatises, etc. This study is expected to contribute greatly to relievingrights of people damaged by administrative actions in that it finds out various problems of ombudsman system and proposes developmental policies related to them. In particular, legal grounds were established to make the ombudsman system implemented in an institutional dimension on July 29, 2005, so this study is thought to contribute to the early development and establishment of the local administration ombudsman system. The following are composition and major contents of this thesis: Chapter 1 attempts to reflect on the purposes, methods and scope of this study and preceding studies. Especially with respect to the study scope, the analysis targets the operation realities and problems of pseudo-ombudsman systemis being implemented in Korean local administration dimension. Chapter 2 deals with definition, functions and types as well as historical origins of ombudsman system as theoretical backgrounds of this study. Chapter 3 deals with the operation examples of local administration ombudsman in foreign countries. It explores various factors required for the development of Korean local administration ombudsman system through the local administration operation realities in England and Japan, including Sweden which operates local administration ombudsman exemplarily. Chapter 4 is about the operation examples of local administration ombudsman system in Korea. It inquires into the history and similar rights relief organizations of ombudsman system in Korea, followed by necessities, legal grounds, etc. of local administration ombudsman. Then, it examines the current circumstances, problems, etc. of local administration ombudsman in Korea through those of similar local administration ombudsman. Chapter 5 explores the policies for activating local administration ombudsman system in Korea in terms of the system's activities and organizations, establishment type, related system utilization, administrative officials, etc. Chapter 6 draws conclusions. The following are conclusions of this study: Korea's ombudsman system can be seen as that which has been discussed and operated as an institutional equipment which makes up for vulnerabilities of existing control methods or functions against administration. The system has indeed played a significant role in solving people's problems, especially as the expansion of modern administrations' authority increases the possibility of infringing on people's rights. It is because various systems similar to ombudsman has sought to establish the administrative responsibility to some degree in central and local governments, thus promoting the development of administration corresponding to people's requirements and expectations. However, the ombudsman system in Korea requires its improvement policies in that it reveals various actual limitations or problems. Above all, the problem is that the authority of ombudsman is very weak, thus guaranteeing neither independence nor political neutrality of ombudsman duty. This forces an ombudsman to exist as the one in formal sense, which is far from the original function of the system. Accordingly, we should take into consideration the following as means for activation to develop the local administration ombudsman system in Korea in the future. First, we should lay the groundwork for ombudsman system in constitution. It is true this proposal seems a task to be solved in the long term, but the ombudsman system seems to require strong legal grounds in light of its characteristics in duty. At the same time, it seems necessary for ombudsmen to have the privilege of exemption from liability and the right of arraignment. Such a privilege would be a special case only in Korea, seeing many countries grant ombudsmen the privilege.essence, the system of ombudsman does not exist to listen to the trifle petitions of people.It can be referred to as one of means for realizing people's own sovereignty and systems for realizing basicrights in the constitution. In Korea, the ombudsman system is indeed far out of the reach of people's concerns due to its history and experience, but anyone should attend to it with great interest as a practical measure of democracy. Recently, "the Law onthe Establishment and Operation of Ombudsman System" has been put into force since October 2005 in Korea, thus laying the legal groundwork for establishing the system in both central and local governments. Basically, we should stipulate the establishment grounds of ombudsman system in the constitution in order to make the system take root as an effective right relief one. Second, we should secure the independence and binding power (bindende Kraft) of ombudsman system. In particular, we shouldestablish the independence of budget right and the independent right of enacting rules to maintain the independence of the institution. At the same time, it is also highly important to ensure the independence of personnel management right. The binding power can be seen as one of the most important factors which guarantee the effectiveness of ombudsman system. In practice, the problems of independence and binding power have been persistently raised for the purpose of promoting the system's original functions in various similar ombudsman systems which are implemented in local governments. Above all, the treatment results of popular civil petitions do not show the system's original functions due to the lack of binding power, which allows the similar ombudsman systems to be exposed to the criticism that they are only means for propagating local governments. Consequently, the effectiveness of ombudsman system must premise its independence andbinding power. Third, we should diversify operation policies. First of all, it is necessary to construct the system of close cooperation with civic groups in finding out civil petitions. At the same time, we should draw up policies to mobilize them in not only visiting the sites for civil petitions, but examining the petitions. As internet population increases explosively in recent years, we should establish the policies for treating ombudsman duties through cyber space. The ombudsman system is not a simple administrative mechanism for treating onlycivil petitions, but a system which is operated based on the society, thus functioning effectively, when supported by the voluntary participation and cooperation of social members. In Sweden's consumers' ombudsman system, experts from all walks of life like lawyers or statistics agents gather together at the office and cooperate with each other for realistic coordinative solution, and not only does each local consultant committee have consultations on local petitions, but consultants themselves are entitled to raise petitions. In Korea's local administration ombudsman system, it is also necessary to use the experts from all fields like lawyers as specialized consultants, and to meet the petitions of local residents especially by designating administrative consultants by regions. Fourth, we should secure volunteers from various fields like welfare, environment, architecture and labor, who are required for the smooth treatment of popular consultations. In addition, it is necessary to construct the cyber petition consultation system through internet for the convenience of petitioners. Fifth, we should secure the professionalism of ombudsman. Most of foreign ombudsmen are celebrities with legal careers, and have aid examiners to treat civil petitions. Also,most of the secretariat is composed of manpower specializing in law. This is greatly different from the local administration ombudsman system in Korea, where the public officials are dispatched as examiners from each ministry and agency. The professionalism should be secured, for it is very important to draw accurate and logical conclusions in that the judgments on civil petitions are mostly legal decisions. Therefore, not only should westrengthen the qualification requirements for ombudsmen to guarantee the functions of institution, but improve the system in order to have legal manpower belong exclusively to the secretariat. Especially as the duties of ombudsmen are extended in scope, it seems necessary to designate ombudsmen equipped with expertise, such as lawyers and to reinforce such professionalism for the purpose of efficient operation of various right relief organizations Sixth, we should expand the sphere of duty jurisdiction. As in foreign examples, the role sharing of general and local ombudsmen shows different features, depending on political and social circumstances of each country. In Sweden, the parliament ombudsmen are in charge of most fields like military, police, law, taxation, medicine, environment and labor, and special ombudsmen of fields which require a special right protection; in United Kingdom, parliament ombudsmen are in charge of most fields, and special ombudsmen of police due to the necessity of special right protection. The purpose of ombudsman system is to protect and relieve the rights of people from administration. Accordingly, it seems desirable that ombudsmen cover possibly all administrative fields. Then, Korea should aim at first making the jurisdiction scope of general ombudsmen cover possibly all fields, and then at using special ombudsmen in local administrative fields. Seventh, when designating ombudsmen at local administration sites, we should make it a duty to seek the approval of designation from the local parliaments under the recognition of their far-reaching interventionfor the purpose of maintaining their fairness and neutrality, and should guarantee their status by making their office term longer than local government heads. With respect to authority, ombudsmen does not have any right to cancel or change administrative actions unlike law courts or governmental offices, and not any right of direct supervision over law courts or administrative actions, either. Accordingly, citizen ombudsmen should request or advise the relevant institutions to cancel or change the faulty administrative actions in cities. On the one hand, ombudsmen should compose annual reports by focusing on annual activities, submit them to local parliaments and local government heads, and disclose them to the public. The reports should cover criticisms on decisions, recommendations, disobedience frequency against administration, budget use specification in detail. On the other, ombudsmen's duties of petition treatment mostly target individual petitions against administrativeactions, and should cover local governments and their sub-organizations, other duty-commissioned organizations and individuals. Especially, the right of examination covers the request to inspect and submit documents, records and data related to the case, the hearing of related officials' opinions, the request of examination and judgment to outer specialized institutions, and the examination in virtue of ombudsman's office. At the same time, ombudsmen should be able to entrust auditing to their own auditinginstitutions, when any official of the related administrative institution treats duties against law, he/she prevents or delays citizen ombudsmen's duty performance. Also, we should make it a duty to examine the fulfillment realities of administrative institutions, conforming to the advices of ombudsmen, in order to multiply the effectiveness of ombudsmen's duties. Accordingly, any head of the administrative concerned should help ombudsmen to examine such fulfillment realties, unless he/she has any righteous reason. Eighth, it is necessary to secure the budget for operation of ombudsmen and make propaganda on a pan-governmental basis. To activate the local ombudsman system, we should make clear legal regulations on the ombudsman's position, andmake the corresponding payment. In addition, we should pursue the independence and procurement of budget preferentially to guarantee the independence and autonomy of the secretariat which supports ombudsmen's duties. As shown by the existing local parliaments, local government heads govern the parliament secretariats,which support parliamentary activities and perform the administrative and legal supplementary roles for members of local parliaments, and all the rights of personnel management and budget execution for the secretariats, which remain on the level of playing roles of simple intermediation between the executives and the parliament, and of session supplementation. Such a local administration ombudsman system, expected to be implemented in the future, will not perform its original functions, if the executives govern the rights of personnel management and budget execution for the secretariat. At the same time, we should reinforce the publicity on a national basis to activate the citizen ombudsman system. We should transform the consciousness of administrative institutions and induce a voluntary national participation by making pan-national publicities in more various forms, such asregular publicity by mass media, including mailing through the combined management system using PCRM, utilization of various media for diversifying publicity channels, banner publicity in internet portal sites, and daily publicity through the formation of networks with residents' autonomous organizations.