지방자치와 분권개헌에 대한 단상(斷想)

Local autonomy is a normative system originating from the Constitution, whereas local autonomy is an empirical reality as politics, society, history, and culture. In particular, due to the characteristics of Korea, where there has been no experience of local autonomy historically, the reality of local autonomy is bound to be dictated by the norms of local autonomy. Most people agree that the reality of local autonomy remains at 20% autonomy and only pattern autonomy even after 30 years of local autonomy in Korea, and in such a situation, it would be difficult for anyone to deny the necessity of decentralization reform as a normative issue for the full-fledged revival of local autonomy. Nevertheless, since the 1987 Constitution, numerous issues of constitutional amendment have been raised, but as a reality of Korea, the issue of decentralization amendment to local autonomy has always been only a secondary issue, and the importance of constitutional decisions exists as a legitimate criterion for inducing and manipulating the reality of local autonomy. In particular, the issue of the Constitution as a normative basis for local autonomy is not just an academic research, but also a fundamental starting point of the local government system and an essential standard and limit for the realization of the local government system, so it is bound to have a very realistic and important meaning. Of course, the abstraction of the Constitution is inevitable to some extent from the highest normality of the Constitution, so it is neither important nor necessary for the Constitution to stipulate specific and detailed contents. However, although abstract and comprehensive regulations are inevitable, and even if they are purposeful in some cases, the important thing is that the Constitution is the basis for administrative law, so it is essential to provide a certain normative framework to prevent arbitraryness in the standardization or interpretation of administrative law. The proposition that the Local Autonomy Act should be a concrete constitution is the same here. Therefore, the local autonomy legislation cannot make a creative and fundamental decision on the content and scope of local autonomy, and should function to specify the content of constitutional guarantees. If the law does not perform such functions properly and the control of the law is not properly implemented, the Constitution has no choice but to clarify the basic principles of local autonomy for legislation and its limitations to secure its normative power, and that is the realization of the rule of law in local autonomy. The normative significance of the decentralization amendment is that the Constitution is a basic decision on how exceptional and unique rules will be allowed for local government administration that is distinct from general state administration. In this regard, when it comes to decentralization reform, it is necessary to declare the so-called ideology of resident sovereignty in the basic direction, which places the power base of local governments' autonomy on residents, and based on this, a constitutional decision is needed on the issue of quasi-legality of ordinances to ensure and expand the practical guarantee of self-government legislation and financial autonomy to guarantee self-government financial rights. The Constitution should not be easily made by political decisions and it is necessary to revise the "Constitution in the true sense" that is consistent with our political and social reality, considering the politics and historical nature of the people's fundamental decisions on the governance structure at the same time as the highest norm of a country.