條例制定權의 根據와 範圍

Abstract

The writer asserts in this article that enactment power of municipal ordinance bases on the Constitution §117 (1) which represents the resolution of enactment power of the Constitution, and the proviso of the Local Autonomy Act §22 is unconstitutional which regulates the enactment of municipal ordinance concerning the restriction on rights of residents, the imposition of obligation on residents, or penal provisions without delegation of individual laws. If we stands on unconstitutionality theory, it doesn’t matter whether the individual law delegates comprehensively so long as the municipal ordinance restrict the right of residents, imposes obligation on residents or stipulates the penalty within the limit of the laws and subordinate statutes. Comprehensive delegation to administrative legislation is void. If we apply this void doctrine on the delegation of municipal ordinance enactment and comprehensive delegation to the ordinance is void, nevertheless the local government can enact the same provision based on autonomous power of enactment conferred by the Constitution, and this enactment cannot be treated as void. But it does not eliminate the necessity of discussing the scope of the enactment power of municipal ordinances as the Constitution restricts the enactment power within the delegation of the laws and the subordinate statutes. Under the constitutionality theory, local government cannot enact restricting the right of residents, imposing obligation on residents or stipulating the penalty without delegation of individual laws. Though the individual laws delegate the enacting power, subsequent problem arises whether general or comprehensive delegation is suffice or individual and specific delegation is necessary. If we stand on constitutionality theory and hold the effectiveness of comprehensive delegation, the scope of enactment power has to be discussed centering additional municipal ordinances/excessive municipal ordinances. Under above-mentioned unconstitutionality theory, applicable room for doctrine of delegated enactment doesn’t exist. But it does not necessarily mean fundamental background of discussing the possibility of comprehensive delegation, as the notion of within the limit of the laws and subordinate statutes forms the brink of the extent provided by the Constitution §117 (1). So the effectiveness of additional or excessive municipal ordinances, but the permissible exent under unconstitutionality theory is broader than that of constitutionality theory. The next problem we should not neglect is municipal ordinances are subjects of Framework Act on Administrative Regulation. As the municipal ordinances are regulated by the above-mentioned Act, the Central Government easily tend to restrict not to circumvent the limit of the laws though the limit is enacted as minimum standard under the good name of maintenance of uniformity. and this regulation leads the additional or excessive municipal ordinances unpermissible regulations. If we operate Framework Act on Administrative Regulation, that law falls under the unconstitutional category regardless of its merit. In the province of pollution and similar province from which emerges the minimum legal standard theory, environmental right enhances as constitutional right, and the general citizen regard the environmental regulations of corresponding laws are too loose. This sort of citizen’s awareness requires the additional or excessive municipal ordinances stricter than the standards provided by the laws effective, and if the notion of within the limit of the laws and subordinate statutes under the Constitution §117 (1) forms the barrier, we should the restriction of the Constitution be removed by the constitutional transition.