지하도상가 관련 지방의회 조례안 의결·재의결 무효확인 소송에 관한 연구 - 대법원 2022.10.27. 선고 2022추5057 판결 및 대법원 2022.10.27. 선고 2022추5026 판결에 대한 평석을 중심으로 -

Abstract

Municipal ordinances and rules, being the essence of Korean local autonomy system, should be free from governmental involvement. However since the right of local autonomy is given by the nation and constitution, local governments may only enact municipal ordinances and rules within the scope of statutes or regulations. While Constitution of Korea endows local governments with right to enact their own ordinances and rules, Constituion also rules that municipal ordinances could only rule whitin the scope of statutes and regulations. Therefore the control of nation over local governments should balance between necessity and limitations. Although there are numerous court cases regarding illegal municipal ordinances, there still exists the need for further research and study. Interestingly Korean Local Autonomy Act endows the head of local government the right to file a litigation against local council when the resolution is deemed to violate statues and regulations. Furthermore recently amended Local Autonomy Act grants competent Minister a right to directly file a law suit against local council when the head of local government refuses to demand local council to reconsider resolution. This rule was amended as a result of numerous criticism from academia. Regarding the litigation, being the single-trial system of Supreme Court, there are numerous cases where the Supreme Court found the resolution ineffective. This paper deals with two cases where Supreme Court found resolution of municipal ordinances ineffective because those ordinances did not abide by the Community Property Management Act. This paper also contains in-depth analysis on the legal issues that those two supreme court cases might bring afterwards and any possible solution to those legal problems.