지방자치단체장의 규칙제정권의 범위와 한계

Article 28, Paragraph 2 of the current Local Autonomy Act, which came into effect in 2022, states that “matters delegated by law to be determined by ordinance cannot have their content and scope restricted or directly stipulated in subordinate laws.” This provision goes beyond simply preventing the past practice of “restricting and infringing on local autonomy through administrative regulations” and can be seen as a declaration that, once the National Assembly or central administrative agencies delegate authority to local governments through laws or regulatory orders, subordinate central government ministries and agencies may not arbitrarily restrict local legislative power. The Supreme Court ruling, October 27, 2014, 2012 du 15920, stated, “The provisions of the former Pharmaceutical Affairs Act excluded the application of the former Local Autonomy Act to the delegation of authority over markets, etc., under that Act, and determined that even though local governments and local government-delegated affairs are regulated by enforcement decrees and regulations, with the intent that they must comply with Presidential Decree, they can still regulate them by enacting ordinances and rules. This provided an opportunity to overcome the substantial limitations on local legislative power that existed in administrative practice, and made an important contribution to the development of local legislative power. However, to clearly guarantee future local legislative power, the provisions of subordinate laws and regulations regarding local government affairs and local government-delegated affairs that were enacted before 2021 and are still in effect must be repealed or revised. Article 29 of the current Local Autonomy Act, effective from 2022, stipulates that local government heads may enact rules “within the scope of laws, regulations, or ordinances,” clearly differing from the provision that remained in effect until 2021, namely, “within the scope of delegation by laws, regulations, or ordinances.” The Supreme Court, November 25, 2021, 2020 du 243449, applied the doctrine of delegation under the Local Autonomy Act provision that remained in effect until 2021, and held that the delegation of authority to enact rules regarding the payment of subsidies-like profits to city bus transportation companies “relatively relaxes the requirements for specificity or clarity.” This ruling can be understood as distinguishing between invasive and revenue-generating rules by local government heads, and as loosening the constraints on ordinance delegation language when enacting revenue-generating rules, and I believe it is reasonable. However, in handling similar cases (autonomous affairs and local government-delegated affairs) to which the 2022 revised Local Autonomy Act applies, it is no longer appropriate to apply the doctrine of delegation to make judgments, and it is not in keeping with the spirit of the revised Local Autonomy Act that rules can be enacted by applying the doctrine of ordinance supremacy as long as they do not violate ordinances.