조례위임법률의 재량규정과 과태료규정에 관한 소고

This article examines two issues that were particularly controversial in the process of establishing the ‘Personnel Hearing Ordinance’ on the procedures and operation of the personnel hearing system introduced in Article 47-2 of the Local Autonomy Act. The first is whether an ordinance can provide for a personnel hearing to be requested from the head of a local government. Regarding this, matters related to personnel hearings are not matters related to the rights and obligations of residents, but are affairs for the appointment of local public officials and are autonomous affairs. Comprehensive delegation is possible through ordinances, and the executive branch and local councils can exercise autonomy through consultation. It was considered possible for reasons such as the fact that it was the legislator's intention to set it by ordinance. The second is whether violations of obligations can be determined by ordinance and fines can be imposed on those subject to personnel hearings. This is also due to the fact that it is not a violation of the constitutional fundamental rights of the person subject to the personnel hearing, the fact that the obligation can be imposed by ordinance pursuant to the Act on Violations of Order, and the fact that it can be viewed as comprehensively delegated in accordance with Article 47-2, Paragraph 3 of the Local Autonomy Act. I thought it might be possible. Meanwhile, the fundamental cause of these two issues is the wording of Article 47-2 of the Local Autonomy Act. Therefore, in the process of enacting the ordinance delegation law, we first thoroughly reviewed whether it was a matter related to the rights and obligations of residents, and when delegating by ordinance, we proposed that the subject be “local government” or omit the subject. In addition, in cases where it is necessary to impose fines by ordinance, it was deemed necessary to resolve the controversy in the self-government legislation process by at least including the term “imposition of fines” in the content delegated by ordinance. For reference, Gyeonggi Province has been conducting personnel hearings for candidates for heads of public institutions through the ‘Gyeonggi-do Public Institutions Heads Personnel Hearing Business Agreement’ between the Provincial Council and the executive branch. As the personnel hearing system was introduced in Article 47-2 of the Local Autonomy Act on March 21, 2023, the Gyeonggi Provincial Council Personnel Hearing Ordinance was enacted on January 10, 2024. Article 3 of the Ordinance stipulates, “The Governor of Gyeonggi Province shall request a personnel hearing for candidates for positions falling under any of the following items.” On the other hand, matters related to the imposition of fines on those subject to personnel hearings were excluded. In conclusion, it is necessary to establish a delegation rule that local governments can conduct personnel hearings through the revision of the Local Autonomy Act, the parent corporation of the personnel hearing system, and that matters necessary for detailed procedures for personnel hearings, such as imposing fines on those subject to personnel hearings, are prescribed by ordinance.