The Improvement of the Legal System for the Determination of the Jurisdiction of Saemangeum Area
Authors:   Korean Administrative Law Association, KIM Yong-Sup 
Published: November 2024

Regarding the decision of the district of local governments, it has been relatively clearly determined by the maritime boundary line on the National Basic Report (topographic map) by the Constitutional Court's competency dispute trial. Currently, it is a dispute settlement system that does not recognize the customary legal effect of the maritime boundary line and resolves it by filing a complaint with the Supreme Court. Article 5 (formerly Article 4) of the Local Autonomy Act states that there is no legal boundary for the district of local governments and that it is subject to the former, and there are no clear regulations under the current law. The decision of the Central Dispute Mediation Committee, the decision of the Supreme Court, and the decision of the Constitutional Court are not judged based on objective and substantive standards. In accordance with the principle of equity, local governments' district decisions are made by applying various factors of consideration set by each judgment agency. As a result, conflicts continue between local governments over the jurisdiction over maritime or public water landfill sites.
The revision of the Local Autonomy Act in 2009 seemed to create a new breakthrough, but the revision of the Local Autonomy Act in 2009 is amplifying rather than reducing disputes, and problems in system design and operation are being revealed.
Even with the full revision of the Local Autonomy Act in 2021, only the provisions were moved from Articles 4 to 5 without any fundamental improvement in this area. Article 6 was newly established to require the Minister of Public Administration and Security to apply for mediation if the boundaries of the area are unclear, and in such cases, the formation of an autonomous consultative body was requested to establish a procedural regulation that forced consultations within a certain period of time. It is unclear whether such an autonomous consultative body will be effective in resolving conflicts between local governments only through autonomous consultations without attempts to promote negotiations by a third neutral institution or mediator. This is because these voluntary consultative bodies are merely a preliminary negotiation channel for the deliberations and decisions of the Central Dispute Settlement Commission or the local dispute settlement commission.
Even the Central Dispute Settlement Commission, the Supreme Court, and the Constitutional Court make decisions on jurisdictional determinations based on a combination of factors set by the judicial bodies themselves, rather than the substantive standards set by law. This seems to be in line with the principle of equity by making a comprehensive judgment, but the factors to be prioritized vary from one institution to another, which leads to legal instability and ultimately to a lack of approval until a judicial conclusion is reached. It is also a problem that the filing period to the Supreme Court is only 15 days, and the judgment by the Supreme Court, which is a judicial decision, is also operated as a single-judgment system to investigate facts, so it is necessary to change the system to a two-judgment system that appeals to the Supreme Court after going through the High Court instead of filing directly to the Supreme Court.
It seems like a step forward compared to the previous system of resolving disputes over the jurisdiction of local governments over the Saemangeum landfill through the deliberation and decision of the Central Dispute Mediation Committee, the decision of the Minister of the Interior and Safety, and the final decision of the Supreme Court.