지방자치단체 사무의 대행에 대한 조례 제정 가능성

Abstract

Generally, the contracting-out administrative affairs to the private sector is discussed as meaning that the administrative agency entrusted the administrative affairs granted by the law and regulations to the private sector instead of performing them, so that the private sector can perform them in its name and under its responsibilities. In relation to the affairs of municipal governments, Article 104 (3) of the Local Autonomy Act is understood as the general basis for the contracting-out. On the other hand, in the case of administrative affairs, the term agency system is used in many actual laws, but the regulatory system and the regulatory method are different for each legislative example, and the concept is not clearly established theoretically. However, on the premise of recognizing the concept of the agency system separated from the contracting-out, the theoretical view seems to be roughly consistent with the fact that the authority of the administrative agency is not transferred to the private sector unlike the contracting-out. In this regard, the concept of the agency system is understood to be the same purpose in the legislative practice of the Ministry of Government Legislation and the National Assembly, which can be summarized as that the head of the municipal government has the private sector to carry out the affairs belonging to the authority, but the name, authority and responsibility of the affairs are not transferred. Considering that the main issue of this paper is a legislative discussion related to whether the contents about the agency system of some of the affairs belonging to the authority of the head of the municipal government can be enacted in the municipal ordinance based on Article 104 (3) of the Local Autonomy Act, the attitude of the legislative practice is meaningful as a premise of discussion. On the other hand, common view has accepted essence of the municipal system as the Institutional Guarantee, understanding “the municipal system as a kind of historical and traditional system should not be abolished or made meaningless by legislation”. However, the essence of the municipal system cannot be understood only by the traditional view above, considering the difference in background from Germany where Institutional Guarantee was discussed and the democratic legitimacy of the municipal system The value of local autonomy guaranteed by the Constitution is to be in the modern implementation of the principle of democracy and separation of powers and in strengthening the guarantee of the basic rights of residents. This understanding about the municipal system should be fully considered in the interpretation of the laws related to the municipal system and the judgment of the scope of the municipal ordinance. The existing opinion presentation case of the Ministry of Government Legislation judges that there is no legal basis for agency system in municipal government affairs. And thus it judges that the municipal government is not able to enact a municipal ordinance on agency system in municipal government affairs. But from the perspective discussed above, the existing opinion presentation case is an excessive formal logic that is biased only to the texts of the law without considering the actual differences between the contracting-out and the agency system. Furthermore, it is not consistent with the legislative purpose that allows municipal government affairs to carry out by contracting-out and legal principles related to the exercising of authority of administrative agencies. However, the discussion above does not mean that it is possible to enact municipal ordinances on the agency of all administrative affairs of municipal governments. In this paper argues that article 104 (3) of the Local Autonomy Act shall be considered as the general basis of the municipal ordinance enactment authority for the agency of municipal governments affairs, and that it is also possible to enact municipal ordinances on the agency system of the affairs within the scope of affairs enacted by the same regulations as the subject of contracting-out. In this sense, the purpose of the discussion is to point out that the attitude of the existing opinion presentation case of the Ministry of Government Legislation did not fully consider the purpose of guaranteeing comprehensive autonomy to municipal governments by guaranteeing local autonomy directly.