제주특별자치도 조례 제정권의 범위 - 지방공휴일 지정 조례 재의요구에 대한 법적 평가를 중심으로 -

Abstract

Currently in Jeju Special Self-Governing Province, there is a fierce controversy on the establishment of a regulation. It is about municipal holiday designation ordinance of a memorial day for the Jeju April Third Uprising and Grand Massacre victims. The governor of Jeju Special Self-Governing Province raised request for reconsideration on the decision of this ordinance by provincial assembly of Jeju Special Self-Governing Province for the reason that it is illegal according to the request of Ministry of Personnel Management. The issue of this ordinance is whether the enactment power of municipal ordinance of Jeju Special Self-Governing Province can decide the matter of ‘municipal holiday’ designation. So far, the central government and local governments including Jeju Special Self-Governing Province have viewed the scope of enactment power of municipal ordinance as narrow. This study is intended to confirm the scope of the enactment power of municipal ordinance of Jeju Special Self-Governing Province and its extensibility through the review on the current legal system on holidays and the legal issue of ordinance regulation about municipal holiday. According to Article 59 of the Local Officials Act, services of local officials shall be decided by a Presidential decree or ordinance except for matters decided in this law. If municipal holidays can be decided by the authority that can decide matters about local officials’ holidays, the issue of this matter would be whether this matter should be decided by a Presidential decree or ordinance. The reason for the revision of this article is that a Presidential decree would decide commonly operated nationwide matters such as working hours. However, the current literal description doesn’t seem like it, and the matters about the power to appoint and to dismiss such as services of local officials are applied to personal sovereignty among autonomy sovereignties, which is applied to the essence of local self-government. Nevertheless, the nature of this issue is whether the reason for the revision can be admitted in an interpretative problem, and whether the intent of the regulation about public offices’ holidays in the current legal system restricts additional designation of municipal holidays by ordinance. If the scope of the enactment power of municipal ordinance has to be restricted as the provisory clause of Article 22 of the Local Government Act is still constitutional, it is necessary to expand the scope of the intrinsic part of local self-government through interpretation in order to realize local self-government guaranteed by the constitution.