日本自治條例之制度特質與啟示：從「依法行政」到「合憲自治」

An Analysis of Municipal Ordinance in Japan: From Administrative Regulation to Legislative Act

我國學說對於地方議會是否具有立法權性質，以及自治條例是否適用依法行政原則，向有爭議，也影響司法實務見解。不過，我國憲法已經確立中央與地方的立法分權架構，釋義學上應該根據實定憲法發展。鑒於日本憲法保障的自治條例制定權，學說發展上明確呈現出從「依法行政」到「合憲自治」之演進軌跡。本文乃從以下三個層面深入研究日本法，探求對我國法的啟示。（1）國家法體系中，自治條例是否根據憲法取得相當於法律之體系定位，並具有獨自之民主統合與基本權保障功能。（2）自治條例如果不受到法律保留原則之拘束，而得作為限制基本權之根據時，又應如何釐清法律與自治條例之關係。（3）自治條例如果不受到法律優位原則之拘束，而得與法律競合立法時，又應如何同時兼顧國家法秩序之整合性與因地制宜之必要性。

There is a dispute in our country’s legal discourse regarding whether local councils have legislative powers and whether municipal ordinance is applicable under the principle of lawful administration. However, our country’s constitution has established a framework for the division of legislative powers between the central and local governments, and its interpretation should be based on the established constitution. In view of the municipal ordinance drafting power guaranteed by the Japanese Constitution, the evolution from“administrative regulation”to“legislative act”is clearly presented. This article investigates Japanese law from the following three perspectives to explore its insights for our country’s law: (1) within the legal system, whether municipal ordinance is equivalent to the legislative act approved by the parliament and has its own democratic integration and unique functions of fundamental rights protection; (2) how to clarify the relationship between national law and municipal ordinance if municipal ordinance is used as a basis for restricting fundamental rights without being bound by the principle of legal reservation; (3) how to balance the unity of the national law and the necessity of adapting to local conditions when municipal ordinance competes with the national law without being bound by the principle of legal superiority.
Through the study of Japanese law, this article can point out the following three points as conclusions. (1) In the national legal system, the constitutions of Japan and Taiwan adopt the framework of legislative separation of powers. Therefore, according to the concept of resident self-governance, the municipal ordinance has its own democratic integration and unique functions of fundamental rights protection. (2) Since the municipal ordinance has direct constitutional basis, it can be used as a basis for restricting fundamental rights without any legal authorization. (3) Since both municipal ordinance and national law are based on the constitution, national law is not always superior to municipal ordinance.