현행 헌법상 지방자치와 지방의회의 입법권한 강화를 위한 시도

Abstract

In South Korea, people have been so accustomed to the old centralized rule that they would say that their rights can be restricted only by the laws enacted by the National Assembly. This is, however, based on the old centralized way of thinking prevalent during the years when local autonomy was not in practice. One of such controversies is around the proviso in Article 22 of the Local Autonomy Act. It does not seem feasible to restrict the rights without statutory reservation with regard to the enactment scope of municipal ordinance no matter whether the proviso in Article 22 of the Local Autonomy Act will be deleted or not due to a revision. This means that discussions about the limitations of legislative power for municipal ordinances should not be limited to the proviso in Article 22. In order to put in provisions of restricting the rights of residents as municipal ordinances, there should be an active attitude to include "municipal ordinance reservation to restrict the fundamental rights," which corresponds to statutory reservation to restrict the fundamental rights, in the Local Autonomy Act instead of a passive attitude to delete the proviso in Article 22 of the Local Autonomy Act. There is a special request to reconsider the current branches of legislative power when consideration is taken into the comprehensive right of autonomy for local governments, democratic legitimacy of local assemblies, supplementary nature of local autonomy, and exercise of local power to fulfill public welfare. It will be difficult to say that there is healthy local autonomy when local governments have one-sided or repressive relations with the central government. If a nation is oriented toward the decentralization of power, their relations should be two-way. This raises a definite need for institutional devices. Under the current situation, it is inevitable to raise doubts about the effectiveness of the institutional devices that are recognized, but it is important to raise local voices and convey them to the central government in a consistent manner since what is important in the political domain is political practice.