지방의회가 집행기관 인사권에 관여하는 조례의 허용범위 - 대법원판례에 대한 비판적 분석 -

Abstract

The Supreme Court of Korea ruled that regarding autonomy of local government, it was illegitimate if a local council fundamentally infringed the executive body’s sole authority over personnel affairs, based on the principle of separation and distribution of power as well as checks and balances between an executive body and an enforcement one. The court stated other illegitimate cases where a local council established any check system which was not stated in a law or the chairperson or its member, in his/her own capacity, engaged in exercising of the authority over personnel affairs by the executive body. Checks and balance which the Local Governing Act seeks is not the one mentioned in the Constitution. However it is used as a principle to interpret law on distribution of power and relations between the legislative body and the executive body concerning autonomy of local government as legislators, authorized by the constitution, introduced the check system as the guiding principle or framework for legislation on organization and operation of local government body and organization and power of a local council. Specific limits on engaging in personnel affaires stated in the ordinance should be based on the principle of checks and balances and law on organization and operation of local government. The Court denies any involvement of a local council in exercising of the authority aforementioned by the executive body by establishing an ordinance without legitimate authority granted by law, which is regarded as a illegitimate check system. However, the check system provided by ordinance may serve to the purpose of principle of checks and balances and fundamentals of local autonomy system as long as it supplements the existing the check system stated in law. Even though the Court does not accept competent of the chairperson or member of a local council to engage in personnel affairs in his/her capacity, they should allowed to do so to a limited extent. The Court stated that it was illegitimate for a local council to actively involve in the executive body’s authority over personnel affairs, however there should be more detailed and clearer standards on examination of legitimate objective and propriety of restriction should be carried out based on principle of checks and balances.