조례제정권(條例制定權)의 근거(根據)와 범위(範圍)
On the Ground and the Scope of the Enactment Power of Municipal Ordinance

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서울대학교 법학연구소
법학, Vol.50 No.1, pp. 483-534
제도적보장이론지방자치법 제22조 단서의 위헌성법률선점이론법령최저기준론행정규제기본법doctrine of institutional guaranteemunicipal ordinanceenactment power of municipal ordinanceunconstitutionality of the proviso of the Local Autonomy Act §22,포괄적 위임
The writer asserts in this article that enactment power of municipal ordinance

bases on the Constitution §117 (1) which represents the resolution of enactment

power of the Constitution, and the proviso of the Local Autonomy Act §22 is

unconstitutional which regulates the enactment of municipal ordinance concerning

the restriction on rights of residents, the imposition of obligation on residents, or

penal provisions without delegation of individual laws.

If we stands on unconstitutionality theory, it doesnt matter whether the

individual law delegates comprehensively so long as the municipal ordinance

restrict the right of residents, imposes obligation on residents or stipulates the

penalty within the limit of the laws and subordinate statutes. Comprehensive

delegation to administrative legislation is void. If we apply this void doctrine on

the delegation of municipal ordinance enactment and comprehensive delegation to

the ordinance is void, nevertheless the local government can enact the same

provision based on autonomous power of enactment conferred by the

Constitution, and this enactment cannot be treated as void. But it does not

eliminate the necessity of discussing the scope of the enactment power of

municipal ordinances as the Constitution restricts the enactment power within the

delegation of the laws and the subordinate statutes.

Under the constitutionality theory, local government cannot enact restricting the

right of residents, imposing obligation on residents or stipulating the penalty

without delegation of individual laws. Though the individual laws delegate the

enacting power, subsequent problem arises whether general or comprehensive

delegation is suffice or individual and specific delegation is necessary. If we...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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