조례의 활성화를 위한 국가의 역할과 과제

Although local autonomy is directly guaranteed by the Constitution, local autonomy relies on the specification of the law in that its legal nature is institutional guarantee. As a result, in the legal system, the success or failure of local autonomy depends heavily on the perceptions and attitudes of the parliament that enacts laws related to local autonomy, the executive branch that enforces the law, and the judiciary department that declares and interprets the laws. In particular, the role of the state for the vitalization of local autonomy is very important in that local autonomy is not a product of a priori legal theory but a product of concrete experiences based on political, social and cultural experiences of each country. The constitutional guarantee of local autonomy is on the one hand the guarantee of autonomy to local governments, while on the other hand it states that the state has a duty to protect local autonomy. In that sense, the state's role in the activation of the ordinances is not just a policy requirement, but a constitutional demand. The Constitution is not just a norm; it is the product of a country's political, social, and cultural decision by the Sovereign. Therefore, in order to revitalize the local autonomy required by the Constitution, the change of the normative recognition of the state power that specifically institutionalizes the local autonomy should be prioritized. Judicially, local governments exist in equal partnership with the state. Nevertheless, the reality of local autonomy in Korea is different from the normative principle, guardian autonomy is common. As a result, the state's legislative, executive and judicial powers are regarded as local ‘administration’, not local ‘autonomy’ in the local autonomy system, generalizing state superior and guardian oversight and control over the ordinances. As a result of local autonomy embodied by law, the legislative power of the state plays the most direct role in the activation of ordinances. Therefore, in order to revitalize the ordinances, it is most desirable for the legislative power of state, which has the primary responsibility for the actual guarantee of of the ordinance-making power, to respect the the lawful nature of the ordinance as much as possible. However, considering the reality of local autonomy in Korea, the most realistic way is to make full use of comprehensive delegation. Nevertheless, Korea's legislative reality is very passive in comprehensive delegation, which is a major obstacle to the activation of ordinances. Jurisdiction is not directly related to the activation of bylaws, since the interpretation and declaration of the law is the main role. However, considering the flaw and insufficiency of laws related to local autonomy, the role of jurisdiction to compensate for the lack of such laws becomes very important. Nevertheless, the basic position of Korean jurisdiction is too dependent on the real law, so it is difficult to expect a function to expect a function that makes up for the lack of local government-related laws. In cases where local autonomy laws are flawed and ambiguous, active interpretation of the law, taking into account the ideology of the Constitution, is a natural responsibility of jurisdiction. The jurisdiction needs to shift from its passive position to a judicial activist attitude to fully realize the ideology and intent of the Constitution to guarantee local autonomy.