조례와 법률유보의 관계에 관한 법해석 및 입법정책적 과제 - 일본의 지방분권개혁에서의 조례제정권확대를 중심으로 -

Abstract

Today, issues such as low birth rates, aging populations, and population decline are expected to lead to labor shortages and slowed economic growth. In response, it has become crucial for local governments to develop policies that reflect regional characteristics and the needs of residents. There is a consensus that, considering the significance of local autonomy, ordinances can enable democratic, creative, and responsible policy decisions. However, various factors hinder the exercise of ordinance-making authority, including a centralized administrative structure, limitations imposed by higher laws, financial constraints, lack of expertise, and insufficient resident participation. Despite the increased interest in local autonomy, exemplified by the enactment of the Residents' Ordinance Initiative Act, the significant presence of agency-delegated tasks and the difficulty of independent financial management have resulted in limited practical outcomes. To overcome this situation, it is necessary to reevaluate the scope of ordinance-making authority and its relationship with the principle of statutory reservation. There is also a need for discussions on legal interpretations and legislative policies that can expand this authority. Japan, through its local decentralization reforms, has quantitatively and qualitatively expanded its ordinance-making authority and redefined the relationship between statutory reservation and ordinance reservation to broaden this authority. Comparatively, Japan adopts ordinance reservation for restricting residents' rights, imposing obligations, and penalties, whereas South Korea adopts statutory reservation, marking a fundamental difference from the outset. Through the first local decentralization reform, Japan abolished the agency-delegated task system, granting ordinance legislative power over all matters. Additionally, the distribution of tasks based on the essence of local autonomy became more important, and the legislative expansion of ordinance-making authority followed. In Japan, there is even an argument that the issue of conflicts between laws and ordinances should be reviewed based on the rationality and proportionality of their relationship rather than statutory reservation. In South Korea, although efforts have been made to change task classifications, the scope of ordinance-making is clearly limited by the general statutory reservation provisions of the constitution, and local councils do not adequately receive democratic legitimacy as legislative bodies. The expansion of local legislative power leads to increased responsibility for local governments, and the expansion of ordinance-making authority based on democratic legitimacy is necessary. Despite differences in the constitutional and normative systems between South Korea and Japan, Japan's discussions offer significant insights into the substantive content required to guarantee the 'ordinance-making authority' as a key aspect of genuine local autonomy.