자치법규기본조례와 자치입법권의 보장

• 영문명: Basic Rule for Rule making and the Guarantee of Rulemaking Power in Local Government
• 발행기관: 한국지방자치법학회
• 저자명: 선정원(Sun Jeong Won)
• 간행물 정보: 『지방자치법연구』4권 2호, 59~80쪽, 전체 22쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2004.12.30

영문 초록

Most rules of local government have been made by model rules and directions of central government, and remain still unchanged in spite of decentralization policy of Participative Government .(2003-now) We must strengthen rulemaking power of local governments urgently and effectively. Basic rule for rulemaking is a charter for local governments, and gives standards for all rules of local governments. For example, rule names and a rulemaking process can be unified by Basic rule for rulemaking . I think, korean local governments must make Basic rule for rulemaking to reduce mistakes in making local rules. I d like to make several suggestions about the contents of the basic rule. 1) Basic rule for rulemaking must prescribe notice and comment procedure for local rules to protect civil rights. It is necessary, because korean local self-governing act doesn t prescribe to give notice and comment before making local rules. 2) The basic rule must prescribe to make citizens know all of new rules quickly on home pages of local governments. 3) The basic rule must prescribe the regular time to correct mistakes of local rules every year. By the regular revision, the appearance of overlapping and similar rules can be prevented, and rules of good quality can be made. And, the following must be improved, to ensure the rulemaking power of local governments. 1) The Supreme Court don t almost defer the rulemaking power of local governments, but must respect the authority of local assembly more seriously. When the Supreme Court make local rules void, it must propose alternatives, as the constitutional court does it. A judicial decision on rules must be different with that on particular acts. 2) Korean local self-governing act (§15, exceptive clause) requires delegation from higher acts of the central government, when local rules prescribe rights or duties of inhabitants. But this exceptive clause puts too much restrictions on the rulemaking power of local governments, and must be amended or eliminated. 3) Central government and local governments must try to reduce the use of model rule from central government, because its excessive use sacrifices the diversity and autonomy of local governments. 4) Local governments have to strengthen the office of judicial affairs and the supporting organization of rulemaking in local assembly. And, they can establish a legislative research institute alone or with other local governments for the sake of this.

목차

I. 지방분권에 따른 자치법규기능의 변화

II. 자치법규기본조례에 의한 자치법규의 정비

III. 자치단체의 자치입법권의 보장

IV. 자치단체의 입법역량의 강화

키워드

자치법규제정원칙 자치법규제정권한 유사조례의 중복금지 지방의회의 권한 중앙정부상위법규로부터의 위임 중앙정부표준조례 자치법규제정지원기구 Basic rule for rulemaking rulemaking power of local governments prevention of overlapping and similar rules authority of local assembly delegation from higher acts of the central government model rule from central government supporting organization of rulemaking