지방의회의 조례제정권의 범위- 대법원 판례를 중심으로 -

Article 117 of the Constitution and Article 22 of the Local Autonomy Acts statethat ordinances can be enacted within the scope of statutes. Local governments mayestablish municipal ordinances relating to local autonomy, within the limit of Actsand subordinate statutes. As local autonomy includes self-governing authority andautonomous legislative power, Local governments may enact municipal ordinances onself-governing organizations. According to Articles 117 and 118 of the Constitution,the types and other matters pertaining to the organization and operation of localgovernments shall be determined by Act. the act on the organization and operation oflocal governments allows local governments to restrict the autonomy of localgovernments and the autonomy of self-governing legislation. At this time, how muchlocal autonomy can be restricted by the act, and how much the local government canbe defined as an municipal ordinance is a matter of constitutional interpretation ofthe local autonomy clause of our Constitution, and This is a question of what is thenature of local government and the essence of local autonomy in the end. Regardingthe nature of local autonomy, there are theories such as the theory of inherent rights,the theory of passing down rights, and so on but the Constitutional Court explainsthe local autonomy system as an institutional guarantee theory in the Constitution,and it is judged that the essence of the local autonomy system should not beinfringed. However, institutional guarantee theory does not explain clearly what theessence of local self-government system is and how to define its scope. I considerthe nature of local autonomy as residents autonomy, and local autonomy should beguaranteed to the greatest extent in light of the relationship between democracy andbasic rights. In addition, since the local council is the representative body of the residents and the legislative and top decision-making body of the local governments,the powers of the local council should be expanded rather than now. From that pointof view, I will examine the recently sentenced nullifying case of local councilordinance reconsideration (Adjudication on jurisdiction dispute between the localcouncil and the local governor, in fact). Finally, It is a state agency that the bodythat guarantees the uniformity of laws and regulations of the state, not a localself-governing body. so, I would like to briefly review the ruling of the SupremeCourt on the right to re-vote the ordinance.