자치입법을 통한 아동의 인권 보장 - 서울특별시 어린이･청소년인권조례를 중심으로 -

Abstract

A local government is regarded as a principal of liability which guarantees children's human rights and supplies child welfare service directly. To realize consumer-directed welfare more substantially, it is important to enact ordinances that is autonomous legislation of local government. In Japan, 'Ordinance on the Rights of the Children' was first enacted in Kawasaki in 2001, whereafter a lot of local governments have enacted and executed ordinances on human rights for children. It is full of suggestions on that enactment of their ordinances includes guarantee of human rights suitable for regional demander, not a top-down welfare policy by the central government. Eventually, in Korea, 'Ordinance on Human Rights for Children and Teens' has been enacted by the Seoul government for the first time in the nation. This paper suggests a direction of growth in children's human rights through the discussion of several issues regarding this ordinance as well as autonomous legislation of local government for children. At first, principle of statutory reservation should be interpreted elastically. It is not relatively much restricted to establish ordinances on security affairs for children's human rights, but if it contains legal sanctions against others by violation of children's human rights, it should be subject to restriction of principle of statutory reservation. However, if duplicity of fundamental rights is admitted, anti-profitable regulation could be accepted in the community without delegation of legislation. At Second, systematic comparison to superior laws should be considered to prevent omission or overlap of welfare. In the ordinance above, to limit narrowly definition of the child and youth has anti-profitable character because it strengthens conditions of benefit, so improvement on this issue is required. Also, it exposes the limit making natural character of human rights appearing like a concept in merely substantial law or international law. Furthermore, Human rights commission and commission on participation of the children and youth by Seoul government, and comprehensive plan and survey for children and youth rights have possibility of overlap or conflict with child welfare legislations. Therefore, we need to reconsider establishment of relationship with superior laws. At last, protection of rights with practical effect would be possible when ordinances on children's human rights have two axial stands which determine system of local government and concrete possibility of disposition on concrete rights. Furthermore, feedback after enactment of the ordinance and construction of system in case management is also required.