Research Report
A Study on Guaranteeing the Right to Autonomous Legislation for Autonomous Affairs
- The autonomy of local governments can be divided into the areas of executive autonomy according to the standards set by the statute and the formative autonomy with respect to the contents entrusted by the statute to be determined by ordinance.
- Executory autonomy is a case in which the local government is entrusted to execute in accordance with the standards and procedures prescribed by the law, and it will be considered as a business that has the character of a binding act.
- Formative autonomy is a case where certain matters can be determined by ordinance in addition to the standards and procedures prescribed by the law, and it corresponds to affairs that have the character of a discretionary act.
- The purpose of this report is to divide the autonomy of local governments into "executive autonomy" and "formative autonomy" in consideration of the fact that the law gives the head of the local government the authority to handle the affairs of the local government, but on the other hand, there are affairs that require the unity of the national legal order.
- Types of legal reform to expand the autonomy of local governments
- The first type that can be mentioned as a type that should be developed in order to expand the autonomy of local governments is cases that are directly delegated as ordinances from administrative rules such as enforcement rules or guidelines, rather than laws or enforcement ordinances.
- The second type is a case in which it is prescribed by ordinance in accordance with the standards set by the enforcement ordinance or enforcement regulations in accordance with the mandate of the law.
- In view of the fact that it is possible to determine the scope of "matters to be determined by ordinances" at the level of the enforcement regulations, which are frequently amended, it may lead to legal instability for the residents, who are the culprits, so the legislative method of delegating directly from the enforcement regulations to the ordinances rather than the law should be refrained.
- Types of "Presidential Decree Standards" that Restrict Autonomous Legislative Power
- If the law entrusts the establishment of certain matters by ordinance and imposes a constraint of "in accordance with the standards set by the Presidential Decree" or "in accordance with the standards set by the 00 Presidential Decree", the purpose of the delegation to the ordinance will be limited if the Presidential Decree or Vice Decree stipulates in detail the substantive content rather than the "standard".
- If the "criteria to be established by presidential decree" are so detailed and specific that there is nothing to be determined by ordinance, or conversely, if the ordinance is declared to be in accordance with the ordinance, it will have the effect of hindering the formative autonomy of local governments.
- In conclusion, in order to further expand the autonomy of local governments, it is necessary to improve legislation according to the full authority of local governments, and it is necessary to establish a legislative model of ordinance deleg