사회보장법제에 있어 조례의 역할과 한계

Abstract

This article deals with the role and legal limits of ordinance in social welfare legal system from a standpoint of local autonomy. That is, to search for activation of community welfare and realization of Social State Principle, what role ordinance of local government should fill and in actually how it fulfill its function. Today the local autonomy is of importance as the administrative system for realization of Social State Principle as well as the core of democratic principles. And the local autonomy is practically realized by autonomy legislation. The local government has the competence to all affairs in local region through the constitutional guarantee of Local Autonomy. The Constitutional Law says also that every local government can enact its own selfgoverning rules within the range of statutes. Accordingly, regional affair should be object of ordinance as autonomy legislation in legal principle. Social welfare is based on regional, cultural and historical character, so welfare affairs are characterized by regional affair. It is applied not the whole country in the same way but in a different way suitable to regional conditions by regional and cultural character. Therefore social welfare is acknowledged as the most representative and the most important original affair of local government. Also, Local Autonomy Act ascertains affairs concerned with promotion of inhabitant’s welfare as local government’ own affairs. Accordingly, welfare affairs should be concretely performed through ordinance. That is not only lawful but also reasonable by the regional character of welfare affair. However the role and function of the present local authorities’ ordinances has been restricted under the level of redundantly providing legal bounds which have been already provided in the national statutes. In conclusion, to obtain the ordinances which will play an important legal role and function for enacting power of local government, we should firstly, improve the present social welfare legal system prescribing welfare administration system in a national point of view, and then we need to take legislative method about the ordinances into serious considerations from the aspect to reinforce the legal function and role of the ordinances It is moreover important, social welfare ordinance as the ‘autonomy legislation’ experiences through the participation of the citizens in the rule-making and policy-making process. Because the ‘autonomy’ attaches essential importance to the participation of the citizens.