미국 법률선점주의(Preemption Doctrine)의 쟁점과 시사점 : 지방자치 입법권한을 중심으로

Due to the article 6 of The Constitution, derived from the supremacy clause; supreme law of the land, the preemption doctrine is defined that a federal law can supersede or supplant any states law that are expressly or impliedly inconsistent with the federal law. Under this doctrine, states law also can supersede any local ordinances which are conflict with those. However, federal laws and state laws have made and enforced without reflection of the locality. Even the environmental pollution by urbanization and industrialization has seriously threatened the health and properties of the local communities, the local governments could not response against the situation. The police power of local government is to protect the public order, safety, moral, and health closest to the citizen, and which is included the economy, welfare, convenience and prosperity of the communities. Thus this power could be the self-reliance and self-rule for significant local interest, but continuously conflicts with the preemption doctrine. However, exception of the preemption doctrine, the Home-rule charter as the local constitution, and the local legislation authority is ensured by the Inherent Rights, fully and completely all powers possible. Consequently, the Inherent Doctrine should be needed and expanded for understanding the nature of localities, and paralleled with the delegation theory in Korean local autonomy.