법령의 적극 해석을 통한 조례제정권 확대에 대한 소고

Abstract

Although a considerable amount of time has passed since the full implementation of local autonomy system in South Korea, the proportion of administrative functions performed by local governments that are delegated by the central government remains notably high. In addition, the criteria for distinguishing the types of administrative functions assigned to local governments remain ambiguous, resulting in ongoing practical confusion regarding the scope of legislative authority of municipal ordinances. Notably, a significant number of administrative functions defined by law as the authority of local government heads are still treated as centrally delegated tasks, which has contributed to the continued weakening of local legislative authority. This study examines ways to expand the scope of local government affairs subject to the legislative authority of municipal ordinances through a more active interpretation of 「the Local Autonomy Act」and relevant individual statutes, with the aim of realizing substantive local self-governance. First, the study outlines the conventional classifications of local government functions as presented in prevailing legal theories and court decisions, along with critical perspectives on these views. It then explores alternative approaches for a more progressive interpretation that departs from conventional doctrines and case law. The study further proposes a active interpretation under which the term ‘affairs under the jurisdiction’ of local governments, as defined in 「the Local Autonomy Act」, may in certain cases be understood to encompass not only autonomous affairs but also agency-delegated affairs. In addition, it conducts a comparative analysis of administrative interpretations concerning the establishment of advisory bodies under Article 130(1) of 「the Local Autonomy Act」 and their relation to local legislative authority. It argues that, in cases where such advisory bodies are intended to support functions delegated to the head of a local government, their establishment by ordinance in more appropriate. Furthermore, the study highlights the need and potential for a more expansive interpretation whereby administrative functions explicitly assigned by individual statutes to the head of a local government are, in principle, regarded as local government affairs subject to legislative authority of municipal ordinances. This approach is consistent with the constitutional intent of institutional guarantees for local autonomy, as well as recent legislative trends aimed at strengthening decentralization. At the same time, to ensure legal clarity and institutional consistency, it is necessary to supplement legislative drafting standards so that the distinction between state affairs and autonomous affairs can be clearly determined based on the form and content of statutory provisions. Such standards would serve as a guideline for legislators and administrative agencies during the legislative drafting process, enabling a clearer interpretation and application of the nature of governmental functions. In conclusion, expanding the legislative authority of municipal ordinances through active statutory interpretation is a key task for realizing constitutionally guaranteed local self-governance and effectively responding to the ongoing trend toward decentralization.