헌법적 관점에서 본 지방자치법제의 발전방향

A Study on the Trend of Local Autonomy Law in light of the Constitutional Law

Since South Korea has been experiencing a substantial development of the local autonomy, it seems necessary to unfold the legal norms and institutions about local autonomy. In this regard, the paper argues that it is very critical to properly understand the principles of local autonomy embodied in the Constitutional Law. For this purpose, this paper will examine the consitutional principles on local autonomy, local elections and the participation by residents, and the power of local government on finance. With respect to the local finance power, it is true that the constitutional basis of finance power of the national government is different from that of local government. The paper, however, argues that even the laws enacted by the National Assembly cannot infringe upon the local government s power of local finance because such power is guaranteed by the consitutional law. This paper next discusses about some fundamental issues related to local tax power. Article 2 of the Local Tax Act stipulates that a local government may impose and collect ordinary taxes and objective taxes as local taxes as prescribed in this Act. At the same time, Article 3 says that a local government shall determine, by municipal ordinances, the tax items, taxable objects, tax bases, tax rates, and other necessary matters concerning imposition and collection of local taxes. Article 59 of the Constitutional Law also provides that types and rates of taxes shall be determined by Act. When reading these three provisions together, it is evident that the Act in the Constitutional Law in the local taxation context should be municipal ordinances. For the purpose of further development of local autonomy, it is worth noting the following constitutional provisions. Article 120 Section 2 stipulates that the State shall establish a plan necessary for the balanced development and utilization of the land. Article 123 Section 2 has a more specific prescription, saying that the State shall have the duty to foster regional economies to ensure the balanced development of all regions. The paper argues that a mere power transfer of national government to local one cannot fulfill the consitutional intent. Together with devolving national taxation power substantially to local governments, it is indispensible for the development of local autonomy to empower local governments to expand local financial authority. This paper finally scrutinizes the current election system, as well as the institutional guarantee of residents participation. It argues that the political party s nomination of candidates for the head of local governments has revealed more demerits than merits. In order to remedy this defect, it suggests that we need to amend the law to prevent national political parties from involving in the nomination process, and encourage establishing new local political parties instead. Although the Constitutional Court held that the National Assembly had no duty under the Constitutional Law to enact the residential elections act, the paper criticizes the holding in light of constitutional principles on participatory democracy and local autonomy, and suggests a second best policy of enacting legal procedures for residential elections by municipal ordinances.