조례(條例) 제정권(制定權)의 범위(範圍)와 한계(限界) = The Scope and Limitation of Regulation-Legislation Rights

다국어 초록 (Multilingual Abstract)

Article 117 of the Constitution and Article 15 of the Self-Government Law stipulate that the local self-governing bodies can enact the regulation within the boundary that the law permits. This means that any regulation cannot violate the law. And, if so, the regulation against the law is null and void. The regulation directly against the law is invalid. But a regulation, if it has a special significance and effect, and if it is admitted to possess rationality, should be interpreted to be legal. If the special conditions in local areas should be considered, if the proper regulation is not perfectly or sufficiently provided for, it should be admitted for the local community to regulate the matters concerned. The matters that the self-governing body can legislate as its regulation are those concerned with the welfare of the inhabitants (as laid down in the Article 117, Item 1, of the Constitution), and they are within the area of the law (as Article 15 of the Self-Government Law reads). Nevertheless, the business of the self-government body covers much of the business committed by the higher organizations. These matters usually go beyond the category of the regulation. In order to overcome these limitations it is required that the affairs entrusted by the higher organizations should be turned over to the community as its local affairs, and that the affairs closely related to the local community should be authorized to the community as local affairs. If the restriction of people`s rights and their duties and the punishment of their violation, Article 15 of the Law stipulates that they have to be committed by the law. So the law prohibits from any regulation on the limitation of people`s right, the enforcement of duty, and their punishment. This law has its own significance since it aims at the systematic minimization of the infringement of people`s principal rights. Nevertheless, the autonomous power of the self -governing body should be greatly damaged if the body at all times has to obtain every concrete admission from the law only because the matters are concerned to the inhabitants` rights and duties. Accordingly, if the matters are not concerned with the inhabitant`s rights and duties, unless the regulation should not be positively against the law, the self-governing local community should be guarranteed to establish its regulations within the boundary that the law prescribes. And even if it is esteemed that the regulation to restrict their principal rights, the community could be granted to enact regulations which contribute to the maintenance of order and the promotion of public welfare. Furthermore, if the regulation that enacts the crime conditions and its punishment ordinances does not conflict or does keep balance with the crime establishment conditions and its punishment, the regulation should not be interpreted to be opposed to the principle of nulla poena sine lege. Article 17 of the Self-Governing Law stipulated that any bylaw or rule established by city, county, and self -governing body should not trespass the law or rules made by the municipal or provincial government body. Accordingly, the basic unit of local government cannot violate the self-governing regulations of its higher self-governing community. And in that case the lower self-governing body should be required to be admitted by the upper self-governing rules. This article should be limitedly interpreted to restrict those cases that the wide unit of local government turn over to the basic unit of local government. The reason for it is, the two units are admitted organizations as foundations by the law of the country. Each organization can establish its regulations on its business within the boundary. If the wide area unit of local government regulateds on all the affairs of the basic unit of local government, the latter`s autonomy becomes meaningless.