지방분권시대에 있어서 새로운 조례 유형에 대한 헌법적 분석 - 일본의 분권개혁을 중심으로

A Consitutional Analysis on the new Forms of Ordinances in the Era of the local Decentralization ― focused on the decentralization reform in Japan ―

&nbsp;&nbsp;In the era of decentralization, the core of local autonomy is the power of local authorities to make ordinances. However in exercising its power, local authorities should bear in mind the provisions of statutes and statutory instruments. Otherwise ordinances may violate any provision of a statute and therefore be invalid.<BR>&nbsp;&nbsp;This paper examines new forms of ordinances to meet the diverse demands of residents in Japan and arguments among Japanese academics and judiciary on their validness. In Japan Local Autonomy Act 1999 was a starting point for decentralization reform. Local Authorities has ceased to be an agent of Government. Now they exercise their power to make ordinances to meet the diverse demands of residents. Can an ordinance provide requirements less strict than requirements provided by a statute? Japanese academics argue that it should be allowed that strict requirements by a statute are weakened by an ordinance.<BR>&nbsp;&nbsp;Finally this paper pays attention to Korea. This paper finds that there remain much room to improve decentralization in Korea, though Korean Constitutional Court held that the government should not infringe the core of local autonomy. After President Noh took the power, Decentralization Act 2004 was enacted and then Decentralization Commission was formed. In order to go further, courts should consider the idea of local decentralization before holding an ordinance invalid for the reason of violating any provision of a statute.