비오톱 조례의 법률상 위임근거 — 이른바 ‘묵시적 위임’에 의한 침익적 조례의 허용과 한계 —

A biotope refers to a unit of space that homogeneously represents the ecological characteristics of a specific biological community. Since 2000, the Seoul Metropolitan Government has been preparing a biotope map that classifies individual spaces into biotope types and classifies their ecological values. It has established a “Biotope Ordinance” that prohibits the permission of development activities on land evaluated as a biotope of a certain grade and uses it as a strong means of environmental conservation policy. Since the Biotope Ordinance is intrusive in that it operates in a way that suppresses the development of individual land to preserve the natural environment, it is questionable whether it violates the provisions of Article 28 (1) of the Local Autonomy Act regarding statutory reservation of the ordinance. In this article, the statutory basis for the delegation to the Biotope Ordinance was reviewed. Although it is not possible to find an explicit delegation to the Biotope Ordinance in related laws such as the Natural Environment Conservation Act or the National Land Planning Act, the development activity permission system and all the regulations constituting it under the National Land Planning Act, which give wide discretion to licensees, can be regarded as the statutory basis for the delegation to the Biotope Ordinance. The main point of this article is that the Biotope Ordinance is not contrary to the provisions of Article 28 (1). In order to support the validity of the above argument, the second half of this article will examine the issue of statutory reservation in intrusive ordinances at the general level. While it is widely recognized that a law can be delegated to an ordinance in a blanket manner, there has been little discussion of whether an ordinance can be deemed to be delegated to a law even in the absence of explicit delegation text in the parent law. This article suggests that even if there is no explicit delegation text in the parent law, so-called “implied delegation” can be recognized by considering the legislative purpose of the law, the content of the regulation, the structure of the regulation, and the relationship with other regulations, and reviews a group of rulings to support this argument. However, such implied delegation is not indefinitely permissible, and the recognition and scope of implied delegation should be determined according to the content and scope of the authority granted by the higher law.