KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Background and Purpose

▶ Research background

○ In the process of changing and developing legal systems, the legislative form of 'comprehensive revision' is a time when historical articulations in individual legal systems are formed, so the organization and analysis of legislative data regarding this articulations is important not only from the perspective of local government administration but also from the perspective of institutional history research. 

○ This research is a task with important meaning: analysing the work of organizing the legislative process and legislative data of the Local Autonomy Act, we explore the demand for related legislation that requires revision in the process of historical transition and change, and discover desirable legislative alternatives in the process of conducting historical and systematic review. This research could have the opportunity to do it. Accordingly, through this study, it is necessary to study and organize the legislative process of the fully revised Local Autonomy Act and examine the contents that require legislative supplementation and maintenance of the Local Autonomy Act after the comprehensive revision.

▶ Research Purpose

○ The fully revised Local Autonomy Act of Act No. 17893 was passed in the 382nd (regular session) of the 20th National Assembly (Term 2016. 5. 30. ~ 2020. 5. 29.). On December 3, 2020, the committee's alternative (alternative) proposed by the Chairman of the Public Administration and Security Committee was proposed as a bill and passed on the same day, and was passed in the regular session of the National Assembly of Korea under bill number 2106258 at the 382nd session on December 8, 2020. It was submitted to the 17th general meeting and passed. As discussed at the Legislation and Judiciary Committee meeting at the time, the 2021 full revision of the Local Autonomy Act was “32 years after the Local Autonomy Act was revived as a result of the democratic uprising in June 1987 and 25 years after the popularly elected local autonomy was launched in 1995.” It is a “full revision that will be made to” and has the meaning of “a law that opens the way to true autonomy and decentralization along with the Local Local Transfer Act passed by the National Assembly in January 2020.”

○ From the historical perspective of the development of the local autonomy legal system, the fully revised Local Autonomy Act in 2021 aims for a fundamentally changed era of autonomy and decentralization 2.0 based on substantive decentralization and autonomy. However, the relevant legal system that can support the operation of the changed local autonomy system has not yet been partially completed. As of October 2023, a legislative task remains to enact a law on the form of local government organization in relation to the local autonomy legislation, and independent legislation related to the organization and procedures of local councils is being promoted. In addition to the enactment of the above laws, discussions are also underway on matters requiring partial revision of the law to be enacted as a separate law directly from the Local Autonomy Act. These include the Referendum Act and the Citizens’ Initiative Act. Regarding the local council bill, there are cases where there are conflicting views on the necessity of legislation and its specific contents, so it is time for a theoretical review.

Ⅱ. Main Content

▶ Legislative issues

○ In the main text, matters delegated by the Local Autonomy Act to be determined directly by individual law include matters related to the diversification of the organization of local governments, matters related to lower administrative agencies of special self-governing cities and special self-governing provinces, and changes and abolition of local government names and districts. Or matters related to installation, matters related to resident participation, such as matters related to referendums, matters related to requests for ordinance enactment,    matters related to recall of residents, matters related to local elections, matters related to local public officials, education, science and sports. Matters related to local taxes, matters related to local finance, matters related to local public enterprises, matters related to the Central Local Cooperation Council, matters related to large cities and special cities such as Seoul, Sejong City, and Jeju Island, etc. are directly regulated in the Local Autonomy Act. There is a need to review matters that are required to be determined by separate laws and matters that require supplementary legislation for the proper operation of the Local Autonomy Act. In addition, as the basis for the establishment of special local governments is established in the revised Local Autonomy Act, legislative issues to ensure stability in the establishment and operation of special local governments are reviewed.

▶ (Direction of legislative improvement to ensure resident autonomy and residents’ right to live)

○ The normative model in the form of a standard ordinance proposed by the Ministry of the Interior and Safety in order to implement self-governing legislation that meets the administrative needs requested by the region's unique historical and cultural environment and residents' lives will be jointly developed by the Provincial and Provincial Council Chairman's Association and the City, County and District Council Chairman's Association in the future. There is a need to convert to a common ordinance proposed by the joint council, and local governments that operate ordinances with the same contents as the common ordinance have the same effect as ordinances that went through the autonomous legislation procedure at the local council. ordinances by granting them and making the list of common ordinances operational so that anyone can view them.

   It is desirable to move in the direction of improving the operating system. The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), which develops and manages common norms in the United States, was established in 1892 and ensures clarity in the norms established by the states and ensures legal stability. We propose legislation to ensure and form unified norms. The ULC committee is formed by appointing as members those recommended by the state government from among those who are legal practitioners or lawyers with legal knowledge and knowledge, including those in the state legislature, judiciary, executive branch, and law professors. In the case of comprehensively transferring administrative authority to local governments, it is necessary to increase the independence and autonomy of self-governance norms on the one hand and ensure generality and rationality as universal norms at the same time, and the roles and functions of organizations such as ULC You will be able to get implications from this.

 

▶ (Direction for improving laws related to resident participation)

○ In relation to the resident-initiated law, first, it is desirable to improve the legal system by preparing a legislative alternative that essentially attaches the right to a referendum on resident-initiated ordinance proposals through the introduction of the resident ordinance proposal system. Second, in relation to the procedural supplementary legislation of the Resident Ordinance Proposal Act, when revising or abolishing an ordinance is requested in the Resident Ordinance Proposal Act, procedural regulations regarding the supplementation of the provisions on maintaining or suspending the effect of the ordinance subject to the request and the request procedure It is desirable to improve the legal system by providing complementary legislative alternatives.

○ It is necessary to reexamine the requirements for resident audit preemption. First, the current Local Autonomy Act does not clearly specify the specific scope of the results of resident audit claims in relation to resident audit claims, which are legal requirements for resident lawsuits, so resident audit claims are not required in this regard. It is desirable that the Local Autonomy Act or Enforcement Decree stipulates the scope of decisions to accept only part of a decision, decisions to reject, and decisions to dismiss.

 

▶ (Review of legislation on institutional diversity)

○ Since the provisions of the 2021 fully revised Local Autonomy Act are lacking in matters explicitly delegated to legislation, the contents of the bill will be reviewed based on the legislation on institutional composition diversification, and each local government will select various types of institutional composition. It is desirable to establish a legal system that can institutionalize this. To this end, diversification plans that fit our country's local administrative system and environment must be reviewed, and whether the law will provide limited types or reserve the possibility for individual local governments to freely design their institutional systems. A legislative decision is needed. And even when choosing a model such as decentralized authority or local council integration, institutional arrangements to ensure the independence of personnel and audit organizations need to be supplemented. It is desirable to establish an audit organization or audit committee to establish a mechanism to distribute and control authority so that power within local governments is not concentrated.

○ Even when adopting a local council-centered, agency-integrated type of organization, it is desirable to establish a system to secure the expertise of executive agencies. In the case of an agency-integrated type, a specific political party is responsible for establishing a system in which local councils oversee the administrative system. It is desirable to consider ways to strengthen internal checks and balances, such as guaranteeing the activities of local councils as bargaining groups, to prevent a situation where local councils are monopolized.

 

Ⅲ. Usefulness and value of research

▶ Review measures to improve legislation to ensure diversity in autonomous administration

○ This study is meaningful in examining ways to improve the legal system that can guarantee the diversity of autonomous administration by analyzing legislative issues regarding the scope and limits of autonomous legislative authority so that the content of special legislation can be designed based on autonomous decentralization. .

○ To ensure the diversity of autonomous administration, it is necessary to respond to the legislative task of institutionalizing cooperation between various types of local governments. When local governments at the metropolitan level establish special local governments to jointly handle affairs, In cases where metropolitan and basic local governments establish special local governments, and when local governments at basic levels establish special local governments to jointly handle affairs, local government affairs can be jointly operated by type. It is meaningful to review legislative measures that can guarantee possible diversity.

 

▶ Review of measures to improve legislation to secure local autonomy responsibility

○ There is a need to prepare improvement plans related to the issue of holding concurrent positions as local council members and the scope of application of the Local Council Conflict of Interest Prevention Act. This study is significant in conducting a general review on this, and there is a need for follow-up legal research in the future.

○ As of September 2023, in the case of operating an integrated form of governance in the 'Bill on Diversification of Institutional Composition', which has been proposed to the National Assembly and is currently being reviewed by the relevant committee, the means, methods, and procedures to ensure accountability must be supplemented. Since there is a need, it includes the operation of an audit committee composed of members directly elected by residents, or an audit organization or committee composed of members elected or nominated by the local council. In order to secure independence, responsibility, and expertise, there is discussion on not only establishing a committee-type audit organization, but also establishing and operating a local accounting audit office as an organization independent from the heads of local councils and local governments. By institutionalizing audits on the execution of autonomous financial rights, it will be possible to secure the soundness of local finances and lay the foundation for efficient financial execution. In addition, the significance of autonomous financial rights can be 

realized by changing the mechanism of financial control through the involvement of central administrative agencies to the direction of autonomous self-supervision.