지방자치의 헌법적 보장의 의미 ― 지방자치의 기존 시각에 대한 비판적 검토를 중심으로 ―

Abstract

Local autonomy means that citizens in a certain district or region govern and deal with their regional affairs on their own under their responsibilities without any interference from the nation. Accordingly, it can be construed in this system that local government refers to form(appearance) of local autonomy, and citizens' autonomy refers to substance(essence) of local autonomy. In terms of nature of the autonomous right, the right cannot deny governmental authority. The source of the local autonomous right also comes from the people not from the citizens in that all the governmental authority of the nation, comes from the people. To hold an election in order to organize a local autonomous body means that the relevant district has been recognized as a political unit. In this respect, local autonomous organization can be a local governing group that consists of a territorial part of the nation. The organization of the local autonomous body, can be categorized as a direct democracy type and a representative type according to the way citizens involve in. Of the representative type, the parliamentary government and presidential system are similar to the forms of government of the nation (parliamentary government and presidential system) applicable to organizational and structural forms based on the principle of separation of powers, and perform the function of controlling the power. The presidential system that the present Local Government Law adopts, is a configuration mode of the law enforcement agency more faithful to the principle of separation of powers. The subsidiarity principle suggests that the distribution of functions and authorities should be made so that local residents decide on their affair which are closely related with their lives for themselves. The distribution of functions and authorities can also realize “grassroots democracy” in which local residents can make decisions on their own, as well as functional control of powers. The current local government system guarantees representative system or representative local autonomy in which heads of local government local autonomous bodies directly elected deal with regional affairs through local councils. After all, the present representative local autonomy signifies the local realization of representative democracy. To make up for the representative local autonomy, the present Local Government Law adds elements of direct democracy such as the citizens' rights to vote and to recall.