침익적 위임조례에 있어 위임의 포괄성과 그 한계 – 과태료조례를 중심으로 -

Abstract

The distinction between autonomous affairs, organ delegated affairs and local government delegated affairs is losing its usefulness, and local legislative competences are being severely threatened, as mandated ordinances are increasingly abused. The Constitutional Court presented the principle of comprehensive mandate as a principle of legal interpretation to guide the existence and methods and limitations of a mandate in order to resolve legal uncertainties related to the relationship between the delegated competences and autonomous rights. Although this principle enabled the interpretation of laws considering the democratic nature of local councils, it was very unclear, by what standards the principle of specific mandate would be modified in making an ordinance, and what the limit of local council's legislative discretion would be. Korea Ministry of Government Legislation applied the principle of comprehensive mandate with great flexibility about the regulation of administrative fines. If the performance obligation of certain affairs is regulated at local ordinances by the delegation from higher-level laws, local counsels can regulate administrative fines as a sanction against that duty also in the ordinances which are not subject to explicit or direct mandate from higher-level laws on administrative fines. I called it the ‘administrative fine ordinances for obligatory performance’, which I judged would contribute to the promotion of local jurisdiction by having a concrete version of the Constitutional Court’s principle of comprehensive mandate.