조례에 의한 벌칙제정권의 허용성

Abstract

A fine, which is an Administrative Punishment, is the only available penalty that can be imposed by local governments for breaches of an ordinance under Article 27 of the Local Autonomy Act, which shall be construed as accepting the argument that an ordinance being entrusted with full legislative power without specifically determining facts that constitute an offense, is the breach of the principle of legality notwithstanding the punishment ranges with maximum limits being determined with regard to an ordinance being entrusted with legislative power under Article 20 of the Former Local Autonomy Act. However, it is deemed not to breach the principle of legality as the punishment ranges are limited not being entrusted with full power and as subject to punishment is subject to the Local Autonomy Administration under Article 9 of the Local Autonomy Act. In addition, it is provided that local councils have no statutory power to provide administrative punishments such as imprisonment with prison labor, imprisonment without prison labor and fine unless otherwise individually empowered, which implies the security of the effectiveness of the ordinance as a tool is vulnerable. The ordinance enacted by local councils, as it is enacted by a representative institute of local residents, is democratically justifiable. Local governments, in terms of a regulatory reality, not only hold a position as an executer of administration but also are in a subjective position of restrictive administration. However, on the other hand, it is unreasonable to try to seek legal grounds for functions of regulations corresponding with circumstances of a local area from individual entrustment of regulation in terms of legislative theory and a regulatory reality. Therefore, punishments enacted in accordance with an ordinance are compliant with the nature of regulatory power. Statutory powers empowered by regulation, of course, are essential since from its nature, it is impossible to create the provision for punishments solely based on an ordinance. Having said that, it does not necessarily mean that an ordinance requires the entrustment the specifies the range of regulation since ordinances of local governments are enacted not by ordinary administrative agencies but local councils having the justification of democracy. That is, it can be said that local governments, in certain circumstances, have the power to enact punishments other than fines regardless of Paragraph 1 of Article 27 of the Local Autonomy Act. However, as this possibly violates the Constitution, the amendment to the Constitution and the Local Autonomy Act shall be made to allow punishments and fines to be imposed as ordinances of local governments. That is, the amendment to Article 117 of the Constitution and Article 22, 27 of the Local Autonomy Act shall be made.