해양관할구역획정법(안) 기준에 따른 해양 관할구역 결정의 공법적 과제 ― 새만금 매립지 관할구역 결정 논의를 중심으로 ―

초록

In 2004, the Constitutional Court recognized the administrative customary law nature of the maritime boundary line on the National Basic Map, ruling that it constitutes an unwritten maritime boundary. In 2009, it further ruled that the ‘previous’ standard under the Local Autonomy Act is, in principle, based on the maritime boundary line. Meanwhile, in 2015, the Constitutional Court ruled that the maritime boundary lines on the National Basic Map were merely lines drawn by the National Geographic Information Institute when necessary for indicating the affiliation of islands and other features on the map, without actual surveying, and thus could not constitute unwritten maritime boundaries. However, in 2021, the Constitutional Court ruled that the maritime boundary line on the National Basic Map could be recognized as a standard if there had been repeated administrative dispositions and processing based on it. Amid the lack of clear criteria under the Local Autonomy Act and the Constitutional Court's shifting stance, the following issues arise: (1) The abstract nature of the criteria proposed by the Constitutional Court (“geographical natural conditions, status of relevant statutes, historical background, exercise of administrative authority, actual administrative practices, and the social and economic benefits to residents”), (2) whether the Constitutional Court possesses the authority to engage in law-making activities determining local governments' maritime jurisdiction based on the principle of equity, and (3) whether jurisdictional determinations are subject to constitutional review in a unitary state, not a federal one. These issues have remained subjects of ongoing debate. Meanwhile, regarding Article 5(4) of the Local Autonomy Act, which states that the Minister of the Interior and Safety determines jurisdiction over reclaimed land, concerns have also been raised. These include the issue of administrative vacuum occurring in the relevant area until the Minister decides jurisdiction, and the lack of clear stipulation of the criteria or elements for determining jurisdiction. Particularly as advances in fishing technology and the utilization of marine resources continue to emerge, the need for clear standards to resolve disputes has also been highlighted. It was pointed out that the ‘existing’ standard under the Local Autonomy Act is unclear. Furthermore, various laws governing the management, conservation, and utilization of the sea stipulate that permits and dispositions can be granted on the premise that jurisdictional boundaries exist. This lack of explicit criteria for cases where no jurisdiction is established has been identified as problematic. Particularly concerning reclaimed land in public waters, since it is not an area already belonging to land but rather a newly emerging area, the problem of administrative vacuum persisting until the jurisdictional area is determined has been consistently pointed out. Accordingly, this paper stipulates the following provisions in the “Act on the Establishment of Local Government Maritime Jurisdiction Areas for the Efficient Use and Management of the Sea” (hereinafter referred to as the Maritime Jurisdiction Area Delimitation Act) submitted to the 21st National Assembly. First, it establishes the following basic principles: (1) ensuring residents' accessibility and fairness in utilization, (2) minimizing infringement on residents' administrative, economic, and livelihood interests, (3) efficient use of the sea, and (4) sustainable development of the sea. (Article 5 of the Act) Second, it establishes the following decision criteria: (1) maritime boundary lines on the National Basic Map, (2) historical facts, actual conditions, and the exercise of administrative authority, (3) administrative districts as recorded in cadastral records, (4) history of changes in administrative district jurisdiction, (5) geographical and natural conditions, (6) residents' administrative and economic interests, (7) current status of administrative affairs, (8) registered land status and coastlines in cadastral records, (9) equidistance and median lines. (Article 6) Third, it established a priority agreement standard, giving precedence to mutual confirmation or agreement between relevant local governments. (Article 7) Fourth, while the Marine Jurisdiction Delimitation Act (Draft) lists the maritime boundary line on the national base map as the first delimitation criterion, it also lists the other nine statutory requirements and additional requirements under Presidential Decrees. It stipulates that delimitation shall be conducted using a “comprehensive, fair, and reasonable method.” Considering the basic principles of the bill (ensuring residents' accessibility and equity, minimizing infringement on residents' interests, efficient use of the sea, and sustainable development principles), the proposed maritime boundary line as a decision criterion is directly related to ensuring residents' accessibility and equity, and minimizing administrative infringement on residents. Furthermore, the delineation criteria outlined in the bill primarily reflect the intent to respect current usage realities—such as “national base maps, historical conditions, cadastral records, administrative processing status, and equidistance/midline principles”—along with the principle of minimizing infringement on residents' interests. In contrast, the criteria for demarcating reclaimed land presented by the Supreme Court and the Constitutional Court consider factors such as “the purpose of reclamation, project effectiveness (Constitutional Court), and efficient utilization of new land (Supreme Court).” This suggests that the project purpose and efficient land use for newly formed reclaimed areas are relatively more heavily weighted. However, beyond the special nature of being newly created areas, it is difficult to see a substantial difference between reclaimed land and existing jurisdictional determinations concerning maritime boundaries. This is because, even when using land newly formed by reclamation, it is preferable to maintain the existing jurisdiction unless this significantly alters residents' living conditions or other relationships. Therefore, the criteria set forth in the bill for determining jurisdiction—considering the previous maritime boundary, historical usage patterns and exercise of administrative authority, residents' interests, and current administrative practices—can be considered applicable to determining the jurisdiction over reclaimed land areas as well.

키워드