[22-1(A) KCCR 596, 2009Hun-Ra11, April 29, 2010]

A. Background of the Case

In this case, the Constitutional Court decided that a petition for adjudication of a competence dispute concerning an internal dispute within a local council was not permitted.

In order to invest a portion of land owned by Ansan City in Ansan City Public Corporation after establishing the aforesaid Public Corporation to construct the Ansan Composite Culture Domed Stadium, the Mayor of Ansan City submitted a proposal for the alteration of a common property management plan for 2009 including the abovementioned matters to the defendant (the chairperson of the Ansan City Council) on June 11, 2009. Thereafter, this proposal for alteration was passed by the Planning Administration Committee, which was the competent standing committee on July 4, 2009, during the 167th session of the Ansan City Council, and the defendant announced that this proposal for alteration was passed at the 167th general session of the Ansan City Council on July 11, 2009. With respect to this, the plaintiffs, who were members of the Ansan City Council, filed a petition for adjudication of a competence dispute over this case with the Constitutional Court on the grounds that the passage of the aforesaid proposal for alteration and the announcement of the passage thereof by the defendant were null and void because the aforesaid actions infringed on the petitioners' right to deliberate and vote on the bill.

B. Summary of the Decision

The point at issue of this case was whether a competence dispute between members of the local council, which is the legislature of the local government, and the chairperson of the local council, who represents the local council, is recognized within the legal system of the Republic of Korea. The Constitutional Court decided to dismiss the petition for adjudication of this case on the grounds that the adjudication thereof did not fall under the adjudication of competence disputes over which the Constitutional Court has jurisdiction.

Firstly, the Constitutional Court judged that the term "between" meant "between different subjects of rights" through the interpretation of the phrase "adjudication of competence disputes between local governments," and considered that a

competence dispute between local council members and the chairperson of the local council did not fall under competence disputes between local governments.

Secondarily, the question was whether adjudication of a competence dispute between local council members and the chairperson of the local council could be permitted through the interpretation. In the past, the Constitutional Court interpreted "among the National Assembly, the Government, the court and the National Election Commission" provided in Article 62 Section 1 Item 1 of the Constitutional Court Act as an exemplification of adjudication of competence disputes between state agencies (96Hun-Ra2, July 16, 1997). In this decision, however, the Constitutional Court held that Article 62 Section 1 Item 3 of the Constitutional Court Act, which provides for kinds of adjudications of competence disputes between local governments, was not an exemplification but enumeration. The reason for the holding thereof was that the Constitutional Court did not need to newly determine the scope of local governments which would become parties to the adjudication of competence disputes, because the Constitution provides that kinds of "local governments" shall be provided by Acts contrary to "state agencies," the Local Autonomy Act specifies kinds of local governments as delegated by the Constitution, and the Constitutional Court Act provides for kinds of the adjudication of competence disputes in consideration of the provisions of the Local Autonomy Act.

With respect to this, Justices Cho Dae-Hyen and Kim Hee-Ok delivered a dissenting opinion in which they argued that a request for the adjudication of the competence dispute over this case could be permitted because Article 62 Section 1 Item 3 of the Constitutional Court Act is not enumeration and procedures for adopting resolutions by a local council need legitimate control.

C. Significance of the Decision and Aftermath of the Case

This decision was significant in that the Constitutional Court held that agencies only provided in Article 62 Section 1 Item 3 of the Constitutional Court Act might file a petition for the adjudication of a competence dispute between local governments. The Court made clear what the adjudication of a competence dispute between local governments meant and by judging that Article 62 Section 1 Item 3 was enumeration, contrary to the interpretation of Article 62 Section 1 Item 1 of the Constitutional Court Act as exemplification in former decisions.

Although there was critical opinion on the reasoning of this decision (Roh Hee-Bum,Major Issues of Cases of the Adjudication of Competence Disputes Related to Local Autonomy), the Constitutional Court maintained the logic of this decision even in a subsequent similar case on the adjudication of the

competence dispute between the Education Office of Gyeongsangnam-Do and the Gyeongsangnam-Do Government (2014Hun-Ra1, June 30, 2016).

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