RISS 검색 - 국내학술지논문 상세보기

다국어 초록 (Multilingual Abstract)

It is difficult to say that the autonomous legislative authority of local governments in Korea is the legislative power in its original sense. The Korean Constitution restricts the high authority in autonomous decision-making and local council, which is the representative body of residents, by stipulating that the exercise of autonomous legislative power should be exercised within the boundaries of national laws. In other words, in the local autonomy system in Korea, it is difficult to say that the essential function of self-government legislation is being realized.
Local autonomy systems centered on local councils contribute to the realization of vertical separation of powers. In other words, the ordinance-making power of the local council performs the functions of cooperation and control over the legislative power of the National Assembly and can be used as a means of vertical separation of powers. Many foreign countries in the form of a federal state or a single state give legislative power to states or local governments (compared to Korea, mainly metropolitan or higher-level local governments) to divide the state and legislative power and seek vertical separation between the federal and state and local governments.
The revision of the constitution and local government law, which emerged to overcome the lack of autonomous legislative power, cannot be evaluated as an alternative to overcome the existing problems, and it may have gone against securing and establishing autonomous legislation. Although local governments' autonomous legislative power is a key and essential high authority for guaranteeing the local government system, it is still not fully guaranteed, which can only be seen as a result of acknowledging itself that it is not local autonomy but simple administrative autonomy.
There is an urgent need for a drastic improvement in the legislative power of local autonomy guaranteed as a constitutional system. In the absence of autonomous legislative power so far, local governments must now be granted autonomous legislative power, and the status of local councils that actually have autonomous legislative power, and furthermore, the relationship and system between local governments and the state must be discussed at the same time.
In Korea, the state makes laws and regulations, and the state directly enforces them. In this regard, there is no system in which local governments can actively participate in the process of making laws, and there is no judicial remedy (e.g., constitutional wish of local governments) to dispute infringement of local governments' autonomy. In the end, it does not conform to the basic legal principles, such as the distribution and attribution of administrative authority and the subject of administrative authority, and the subsequent legislative authority - inconsistent with the attribution system of authority and office work. As a result, the state controls the entire process of legislation and execution of local governments' own affairs with an upper hand in legislative and executive power over state affairs. In the current situation where the local autonomy system is being implemented, this offbeat is bound to accompany several subsequent problems.
In order to achieve true local autonomy, it is necessary to classify the state to play a role in planning, coordination, and management across the country, and local governments to play a role in enforcing national laws.
First, through the amendment of the Constitution, the stages of administration must be clearly set in the order of state-wide local governments-basic local governments in the Constitution. At least in the Constitution, matters concerning the allocation of state power (legislative power, administrative power, and judicial power) between the state and metropolitan local governments (decentralization of state power) are stipulated, and local autonomy is a principle.
Second, if it is difficult to amend the Constitution, it is a plan to more clearly classify and define the affairs of the state, metropolitan local governments, and basic local governments by revising the Local Autonomy Act. It stipulates clear state affairs, affairs performed by the state and metropolitan local governments in competition, and clear regional local government affairs, and all other affairs are defined as those of basic local governments. In the end, based on this, the right to self-government legislation will be guaranteed within a clear area.
It is a very significant direction for the flow of research on autonomous legislative rights to move beyond the interpretation of the existing constitution and local autonomy laws to discuss decentralization of state and local legislation, reorganization of the administrative system, and specific guarantee of the constitutional local autonomy system. Through this study, we hope that a constitutional amendment containing the full reform of the local autonomy system, that is, the fundamental reform of the local autonomy system, will be born, and that it will be meaningful as a starting point for subsequent reform tasks.

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참고문헌 (Reference)

1 김동건, "한국의 지방자치에서 법률과 조례의 갈등관계" 한국지방자치법학회 14 (14): 283-305, 2014

2 김희곤, "한국 지방자치제도의 현황과 발전방향 − 자치입법권을 중심으로 −" 한국지방자치법학회 19 (19): 3-44, 2019

3 김재선, "진정한 지방교육자치 보장을 위한 입법갈등 해소방안에 관한 연구 - 미국 핵심교육과정에 관한 중앙과 지방의 입법갈등 논의를 중심으로 -" 한국지방자치법학회 16 (16): 191-215, 2016

4 김명식, "지방자치의 본질과 자치입법권에 관한 재고찰" 한국비교공법학회 16 (16): 69-94, 2015

5 김남철, "지방자치단체 국정참여의 공법적 과제 - 상원 또는 지방원 도입에 관한 논의를 중심으로 -" 한국지방자치법학회 10 (10): 113-146, 2010

6 조성규, "지방자치 20년을 통한 자치입법권 보장의 평가와 과제" 한국지방자치법학회 15 (15): 137-169, 2015

7 이지은, "지방일괄이양법 제정과 관련된 공법적 과제" 한국지방자치법학회 17 (17): 3-30, 2017

8 최우용, "지방이양일괄법 제정과 자치분권강화를 위한공법적 과제" 한국비교공법학회 20 (20): 3-20, 2019

9 강기홍, "지방분권형 국가를 위한 지방자치법의 개정 방안" 한국비교공법학회 16 (16): 243-266, 2015

10 최봉석, "지방분권형 개헌과 지방자치법제 발전방안 - 2018년 헌법개정안에 대한 평가와 분석 -" 한국지방자치법학회 18 (18): 3-36, 2018