조례와 법률우위의 원칙 - 지방의회와 지방자치단체장간의 권한범위에 관한 대법원 판례를 중심으로 -

A local ordinance and the law predominance principle- focusing on the Supreme Court cases regarding the authority scope between the local council and the local government head - Shim, Yong-Jae The Constitution Article 117, paragraph 1 and the Local Government Act No. 22 regulate that an local ordinance can be enacted within the scope of the statute. 'Within the scope of the statute' means 'within the scope of the non-violation of the statute'. This rule is applied to all authorities of local government as well as the authority of autonomy in local government legislation, including authority of autonomy in local government organization and personnel administration. The Local Government Act stipulates the authority of the local council and the local government head. A local ordinance must not violate the authority of the local council and the local government head decided in the Local Government Act. For example, although The Local Government Act assigns the authority of the nominating local public officials to the local government head, if an ordinance allowing the local council to nominate local public officials is enacted, that ordinance is violating the statute. By the way, in case an ordinance regulates that the local council cannot directly violate the authority of the local government head but can check the authority of the local government head, can we say the ordinance is illegal?As the Supreme Court' precedents, an ex post and passive restraints are permitted, but priory and positive restraints are not allowed. The purpose of this review is the questioning the validity of ' ex post and passive ' and the checking the individual Supreme Court cases from a critical viewpoint.