침익적 조례의 법률유보에 관한 새로운 판례 법리 — 대법원 2022. 4. 28. 선고 2021추5036 판결ㆍ대법원 2022. 7. 28. 선고 2021추5067 판결 —

Under the current Local Autonomy Act, Article 28, Paragraph 1 (proviso), it is stipulated that to enact an ordinance that restricts citizens' rights or imposes obligations (“infringing ordinance”), there must be “delegation by law.” However, in two decisions in 2022, the Supreme Court held that even if there is no explicit provision in higher law for delegation to ordinances, “if it can be deemed that the ordinance concretizes or clarifies matters anticipated by the legal provisions, then local governments may enact ordinances addressing residents' rights and obligations, as long as they do not conflict with laws and within the context of local circumstances.” In doing so, the Court presented a new legal principle on the issue of legal reservation for infringing ordinances. In this article, I explored the substantive implications of the new legal principles established by these two decisions and assessed their permissibility. The principle recognized in the decisions is difficult to categorize under the conventional or precedential “theory of comprehensive delegation,” which has been regarded as the orthodox view on legal reservation for infringing ordinances. Nor can it be viewed as a variant of the theory on “enforcement orders” regarding the relationship between law and administrative legislation. Rather, these decisions declare that delegation for infringing ordinances need not occur through “explicit wording of delegation” (delegation by text), but may also be possible as “delegation deduced from the intent and content of higher laws, their structure, and relationships with other provisions” (delegation by subtext or context). In this regard, the issue arises as to whether the legal principle established by two decisions can indeed be permitted under the interpretation of the proviso to Article 28(1) of the current Local Autonomy Act. However, considering the ordinary usage and linguistic conventions of “delegation”, the lack of specific provisions on delegation method in the Local Autonomy Act, and the unique nature of ordinances compared to other administrative actions, it is concluded that there is no need to restrictively interpret the “delegation” in Article 28, Paragraph 1 as requiring a literal wording of delegation. Moreover, the new approach allows for the expansion of the scope of legislative autonomy and enhances the expediency and flexibility of exercising legislative autonomy, and presents the opportunity to reconsider judicial review methods regarding the effect of ordinances. Therefore, this article concludes that the new legal principle identified in the decisions should be recognized as legitimate and appropriate.