지방자치단체 계층구조 개편의 공법적 문제

Abstract

(1) Article 117 of the Constitution takes a neutral position as to the relevance of locality of local autonomous communities. It has been established that it is up to the legislators whether to restrict or relax the relevance of locality, the choice is often under the legislative discretion. (2) Although article 117 of the Constitution states that local autonomous communities(local governments) may enact provisions relating to local autonomy, it is hard to establish a legislature and a court system which are exclusive to the local autonomous communities. The Constitution vests legislative power in the National Assembly(Article 40) and from the way the Constitution is set up - separating each chapter: Ch.3 (National Assembly), Ch. 4 (the Executive), Ch.5 (the Courts), and Chapter 8 (Local autonomy) -, it is hard to imagine local autonomous communities having their own 'exclusive jurisdictions' without changing the Constitution. However, even before the Constitutional reform, by means of delegation, we might be able to secure authority granted to the local autonomous communities . (3) Whether to form multi-layered local autonomous communities or single-layered communities is not a matter of right or wrong, but a matter of choice. It is probably the best to rely on the rule of majority when deciding. In case we decide to go with multi-layered form, the division of affairs should not entirely depend on relevance of locality. (4) When enacting the law, the lawmaker should make it clear whether stated affair is national affair or autonomous affair. If one must deliberate what legislative intent is, “local autonomy for the resident, by the resident, of the resident” becomes nothing but an empty slogan.