This paper discusses the question whether the proviso clause of §15 of the local autonomy law which states that there should be a law to regulate the rights of the residents with bylaw violates the Constitution. Even to date the theory of autonomic law and that of mandatory law oppose each other concerning the question. Those who emphasize the self-regulation of the local autonomy think that the proviso clause of §15 is unconstitutional, while those who make much of the guarantee of the fundamental rights of the people argue that it is constitutional. Both theories however follow the theory of the Institutional Guarantee on the substance of the power of the autonomy. This comes from the misunderstanding of the substance of the autonomy and the legal nature of the bylaw. If we follow the theory of the Institutional Guarantee based on the idea that the autonomic power comes from the power of governance of a nation or laws, the bylaw should be viewed as invested by laws. On the other hand, since our current Constitution provides the power of the autonomy, that power is invested directly from the Constitution and the bylaw too, as an autonomy law handed down directly from the Constitution and not from laws, is one of the national laws. Accordingly it can regulate the rights of the residents without the delegation of laws. In conclusion, the proviso clause of §15 of the local autonomy law should be viewed as a provision violating the Constitution.

This paper discusses the question whether the proviso clause of §15 of the local autonomy law which states that there should be a law to regulate the rights of the residents with bylaw violates the Constitution. Even to date the theory of autonomic law and that of mandatory law oppose each other concerning the question. Those who emphasize the self-regulation of the local autonomy think that the proviso clause of §15 is unconstitutional, while those who make much of the guarantee of the fundamental rights of the people argue that it is constitutional. Both theories however follow the theory of the Institutional Guarantee on the substance of the power of the autonomy. This comes from the misunderstanding of the substance of the autonomy and the legal nature of the bylaw. If we follow the theory of the Institutional Guarantee based on the idea that the autonomic power comes from the power of governance of a nation or laws, the bylaw should be viewed as invested by laws. On the other hand, since our current Constitution provides the power of the autonomy, that power is invested directly from the Constitution and the bylaw too, as an autonomy law handed down directly from the Constitution and not from laws, is one of the national laws. Accordingly it can regulate the rights of the residents without the delegation of laws. In conclusion, the proviso clause of §15 of the local autonomy law should be viewed as a provision violating the Constitution.

local autonomy law, power of the autonomy, Institution-Guarantee, bylaw, the proviso clause of §15