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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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- Authors
- Issue Date
- 2009
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.50 No.1, pp. 483-534
- Keywords
- 제도적보장이론 ; 지방자치법 제22조 단서의 위헌성 ; 법률선점이론 ; 법령최저기준론 ; 행정규제기본법 ; doctrine of institutional guarantee ; municipal ordinance ; enactment power of municipal ordinance ; unconstitutionality of the proviso of the Local Autonomy Act §22, ; 포괄적 위임
- Abstract
- 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...
- ISSN
- 1598-222X
- Language
- Korean
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