지방자치제의 보장을 위한 논의와 한계

A constitutional guarantee of institution is regarded as the legal character of system of local autonomy. But the existing traditional theory on the guarantee of institution was not effective guaranteed device for the right of th autonomy. There is a tendency to introduce the theory of the fundamental right into the theory of the institutional guarantee, and to strengthen the institutional guarantee of the local autonomy. It's tendency was also resulted from a vacillation of the foundation of the theory of the institutional guarantee that came from it's conceptual unclarity and it's difficulty in definition of contents and emergence of the theory of institutional fundamental right, etc. We can find a clear difference of between Institution and Rights in forms of it's regulation and it's legal character, it's contents. We can conclude that it's way of thinking are very different each other as followings.; on a premise of a sharp distinction between Institution and Rights, a theory of the institutional guarantee is based on a direction from Institution to Rights, a theory of the institutional fundamental rights is based on a direction from Rights to Institution. The institutional guarantee is not a legal form to forming and creating something new, but is to guarantee its contents that is protected as the guaranteed object that is declared normative institution. Only introducing the theory of fundamental rights into the theory of Institutional Guarantee in the local autonomy, we should consider carefully that the former introduce into the latter uncritically, and the concept and methodology of the latter also convert into the former.