자치입법권의 확대를 위한 입법 과제

Despite the significant increase in local governments' autonomous efforts to expand their legislative powers alongside the full-scale implementation of local autonomy, national laws specifying autonomous legislative powers not only fail to take autonomous legislation into account, but also tend to restrict it. Article 117, Paragraph 1 of our Constitution stipulates that local governments “may enact regulations concerning autonomy within the scope of laws and regulations,” thereby restricting the right to autonomous legislation to be recognized only “within the scope of laws and regulations.” In addition, Article 28, Paragraph 1, Proviso of the Local Autonomy Act stipulates that “when determining matters concerning restrictions on the rights of residents or the imposition of obligations or penalties, there must be delegation by law,” thereby drastically reducing the scope of the right to enact ordinances so that ordinances of a regulatory nature cannot be enacted without delegation by law. Legislative challenges for expanding local legislative powers must be examined separately across the Constitution, the Local Autonomy Act, and individual statutes. However, given the impossibility of immediate constitutional amendments, measures to expand local legislative powers can include activating delegation of ordinances when enacting or revising laws to broaden the scope of local legislative powers. Furthermore, it is necessary to consider establishing specific legal restrictions to allow local governments to exercise administrative authority autonomously through autonomous legislation. Furthermore, legislative considerations are needed to ensure autonomy in the standards, principles, and procedures for exercising ordinance-making authority while delegating duties and authority to local governments through statutes. To effectively guarantee and expand ordinance-making authority, a shift in the perception of state powers—legislative, administrative, and judicial—is essential, not merely expanding theoretical discussions on ordinances, but rather concretizing and institutionalizing ordinance-making authority in a practical sense. Due to the nature of institutional guarantees, the specific formation of local autonomy systems relies on law. Therefore, the state's legislative power plays a direct role in activating ordinances. Therefore, it is necessary to establish a general legislative principle regarding the legislative approach and method of considering local legislation in the enactment and revision of national laws, and to explicitly incorporate this principle into general laws such as the Local Autonomy Act. By establishing and solidifying this legislative method as both a principle and a practice in the future, we will be able to contribute to the formation and development of an overall harmonious national legal order based on the mutually appropriate functions and division of roles between the state and local governments, national laws, and local government regulations.