An Argument of Unconstitutionality of the proviso of Article 28 (1) of the Local Autonomy Act
Authors:   Korean Constitutional Law Asscciation, Jeong Joobaek 
Published: August 2023

Article 117, Paragraph 1 of the Constitution stipulates, “Local governments shall deal with administrative matters pertaining to the welfare of local residents, manage properties, and may enact provisions relating to local autonomy, within the limit of Acts and subordinate statutes.” Local governments seem to be able to independently enact ordinances within the scope of the law. By the way, Article 28, Paragraph 1 of the Local Autonomy Act states, “Local governments may enact ordinances regarding their affairs within the scope of laws and regulations. However, when determining matters concerning restrictions on residents’ rights or imposition of obligations or penalties, there must be a legal delegation.” Regarding matters concerning the restriction of residents' rights or the imposition of duties, ordinances can only be enacted when delegated by law. The key argument for the argument that this provision is not unconstitutional is Article 37(2) of the Constitution. Since Article 37 Paragraph 2 of the Constitution stipulates that fundamental rights can only be restricted by law, the proviso of Article 28 Paragraph 1 of the Local Autonomy Act only confirms it. However, such an argument is not valid. Although Article 37 Paragraph 2 of the Constitution stipulates that fundamental rights cannot be restricted except in the form of law, Article 117 Paragraph 1 of the Constitution stipulates that, as an exception, local governments can voluntarily enact ‘regulations on autonomy’. is revealing This provision contradicts Article 37(2) of the Constitution, but remains in force. This is because they are norms that are in the same ranking as each other. Furthermore, Article 117, Paragraph 1 of the Constitution has the effect of excluding the application of Article 37, Paragraph 2 of the Constitution. This is the result of the principle of priority over the special law. As such, the limitation of Article 37, Paragraph 2 of the Constitution, which states that fundamental rights cannot be restricted except by law, does not apply to self-government affairs. However, the proviso of Article 28, Paragraph 1 of the Local Autonomy Act contradicts the self-governing legislative power of local governments secured by Article 117, Paragraph 1 of the Constitution. A lower law that is in conflict with a higher law cannot continue in force. Article 107(1) of the Constitution presupposes this. Therefore, the proviso of Article 28(1) of the Local Autonomy Act is unconstitutional. This cannot be justified. In the case of restriction of fundamental rights, there is a justification review process, but if the restriction of authority is recognized, it is immediately judged as unconstitutional and does not go through justification review. President Moon Jae-in's constitutional amendment stipulates the proviso to Article 28, Paragraph 1 of the Local Autonomy Act in the Constitution. President Moon Jae-in's constitutional amendment bill proclaimed that it was oriented toward local autonomy and added several constitutional provisions, but it diminished its meaning by elevating the proviso to Article 28, Paragraph 1 of the Local Autonomy Act to the constitution.