자치입법권의 헌법적 재구성 ― 위계적 통제에서 기능적 상호작용으로 ―

This article reexamines the normative status and limits of local legislative power under the Korean Constitution in light of the 2021 full revision of the Local Autonomy Act, and argues for reconstructing the relationship between state legislation and local legislation from a hierarchical model into a structure of functional interaction. Article 117(1) of the Constitution, which authorizes local governments to enact provisions relating to local autonomy within the limit of Acts and subordinate statutes, has in practice been understood to encompass not only Acts enacted by the National Assembly but also subordinate administrative legislation, including Presidential Decrees and ministerial ordinances. As a result, the ordinance-making power of local governments has been structurally constrained not only by statutes but also by administrative legislation. Although local ordinances function as substantive norms that reflect local conditions and shape the everyday legal order of residents, the existing control framework has tended to treat them as subordinate implementing rules rather than as autonomous local legislation. Against this background, the article first examines the constitutional nature of local autonomy and the status of local legislative power, with particular attention to the constitutional implications of Article 28(2) of the revised Local Autonomy Act. It then analyzes the continuing limitations on local legislative autonomy even after the 2021 revision, including the persistent restriction of ordinance-making power, the limited effectiveness of the residents’ ordinance initiative system, the structural weakness of local councils’ legislative capacity, and the limitations of the comprehensive delegation model in special self-governing provinces. On this basis, the article proposes that the relationship among ordinances, statutes, and administrative legislation should be reconstructed not through a simple logic of formal hierarchy, but through a staged review structure composed of priority regulation by ordinances in local affairs, subsidiarity and necessity review of state intervention, prohibition of preemption of local regulatory space by administrative legislation, and an interaction-based compatibility review in cases of normative conflict. From a comparative perspective, the article examines Germany’s constitutional guarantee of local self-government and ex post legality control, Japan’s abolition of agency-delegated functions and legalization of state involvement, and France’s principle of free administration and experimental local lawmaking. These cases demonstrate that the realization of local legislative autonomy depends not merely on the transfer of powers, but on the redesign of task allocation, conflict-control mechanisms, and judicial review structures. In conclusion, the article argues that the effective protection of local legislative power requires clarification of its constitutional status, recognition of subsidiarity as a governing principle, stronger institutional independence of local councils, meaningful local participation in national legislative processes, and more refined controls against the encroachment of ordinance-making space by administrative legislation. Ultimately, this study seeks to reconceptualize local autonomy not as a mere instrument of administrative decentralization, but as a constitutional structure for residents’ self-government and the multilayered realization of democracy.