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문상덕 한국법제연구원 2009 법제연구 Vol.- No.37
Constitutional law and Local government law give a guarantee of the power of autonomous legislation of local governments, but the possibility of autonomous legislation of local government are confined to narrow limits. Especially, the Principle of Legal grounds to local legislation by the interpretation of Constitutional law(especially §37 ②) and the provisory clause of Local government law §22 require the legal grounds of the regulatory local ordinances. Therefore, local ordinances of local governments as autonomous laws have been distorted into heteronomous laws. And it is another problem that the statutes of central government give detailed provisions on the autonomous office work(affairs) of local governments, so the possibility of local legislation are very restricted. In order to settle these problems, above all, I think that the revision of Local government law §22 is needed. The expression "inside of the statutes bound" of Local government law §22 should be changed into "inside of not against the statutes" and the provisory clause of Local government law §22 should be deleted. As the result, the local ordinances also should be made without the delegation of national statutes.
법령 위임으로 제재적 행정처분의 기준을 정한 행정입법의 법적 성격
문상덕 부산대학교 법학연구소 2023 법학연구 Vol.64 No.1
This paper aims to establish the national legal system more clearly and incidentally correct legal application or judicial review methods for related issues by urging the Korean Supreme Court to change its own contradictory and illogical precedents on the legal nature of the subordinate decree, which sets the standard for sanctioned administrative disposition. Until now, the Supreme Court considered that even if the standard of sanctioned administrative disposition was set by the Ministry of Government Administration (the Enforcement Rules), which is a constitutionally recognized form of administrative legislation, it is nothing more than an administrative rule (administrative order), so it is not recognized as a legal order that binds the people or courts. In addition, the Supreme Court denied the legal effect of the department decree setting the standard for sanctioned administrative disposition, suggesting that the legality of the disposition in individual cases should be determined according to the provisions and purposes of the underlying law. Various evaluations and interpretations have been raised in academia, and generally critical views have prevailed on the consistent and firm position of the Supreme Court. However, the Supreme Court's position is still unchanged, which is believed to cause basic errors or confusion in understanding the national legal system in relation to the legal nature of the department ordinance (law enforcement rules) that sets the standard for sanctioned administrative disposition. In this paper, first of all, the background and origin of the Supreme Court's attitude toward precedent were analyzed, and the legal and legal system problems caused by such attitude were reviewed to prove the error of precedent. In conclusion, I would like to urge the Supreme Court, the final authoritative interpretation agency on legal interpretation, to clearly change the conventional precedent attitude on this issue. Through this process, the government tried to establish a national legal system by clarifying its understanding of national laws and order, and to present a more desirable method for legal application or judicial review in related individual cases. If the Supreme Court has an explicit delegation of laws, norms set in the form of administrative rules such as directives are recognized as legal orders, and the Supreme Court's judicial attitude, which has denied the principle of delegation of legislative power and explicit authorization, is more reasonable from a legal system perspective. Although it is a norm enacted in accordance with the constitutional and legal authorization procedures and has the nature of a legal order, the Supreme Court's interpretation has led to unfair consequences of being excluded from the current national legal system, which is also confusing in terms of establishing or understanding the national legal system. Accordingly, we urge the Supreme Court to carry out changes to related precedents as soon as possible, which are contradictory and illogical.