[의료기관업무정지처분취소][공1994.7.1.(971),1851]
Whether or not the head of the Gu may delegate the medical service suspension affairs of the medical institution granted to the Mayor of the Metropolitan City under the provisions of the Gu Medical Service Act.
In full view of the purport of the provisions of Articles 85, 94, and 95 (2) of the Local Autonomy Act, even if there are provisions concerning the form of delegation of authority under Articles 51 (1) 2 and 64 of the former Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994), the head of the local government concerned may delegate his authority to the agencies of the competent local government as to the affairs of the local government pursuant to the Municipal Ordinance. Article 51 (1) 2 of the same Act of the same Act of the medical institution where his authority is granted to the head of the Metropolitan City and Metropolitan City Mayor pursuant to Article 51 (1) 2 of the same Act of the same Act of the Local Autonomy is a local government. Thus, the head of the Gu who has received delegation of authority from the head of the competent local government
Articles 51(1)2 and 64 of the former Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994), Article 95(2) of the Local Autonomy Act, and Article 2(1) of the Ordinance on Delegation of Administrative Affairs of the Gwangju Metropolitan City and Gwangju Metropolitan City
Supreme Court Decision 87Nu412 decided Jan. 19, 1988 (Gong1988,417) 87Nu405 decided Sep. 27, 198 (Gong1988,1348) 89Nu7023 decided Apr. 10, 1990 (Gong190,1071)
Plaintiff
The head of Dong/Metropolitan City
Gwangju High Court Decision 92Gu2218 delivered on July 22, 1993
The judgment below is reversed and the case is remanded to the Gwangju High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment of the court below, with respect to the issue of whether the defendant has the authority to suspend the medical service of the medical institution of this case, the court below stated that "the Minister of Health and Welfare or the Do governor may suspend the medical service of this case or order the closure of the medical institution if the medical institution falls under any of the following subparagraphs," and Article 64 of the same Act provides that "the Minister of Health and Welfare or the Do governor may delegate part of the authority of the Minister of Health and Welfare or the Do governor under this Act to the head of the Si/Gun/Gu under the conditions as prescribed by the Presidential Decree," but the Enforcement Decree of the Medical Service Act, which is the Presidential Decree, does not provide for the delegation of the authority of the Minister of Health and Welfare or the Do governor under Article 64 of the above Act or the head of the Do governor under the provision on delegation and entrustment of the administrative authority, and instead, Article 31 (1) of the Enforcement Decree of the above Act does not delegate the authority of the Minister of Health and Welfare or the Do governor to the head of this case.
However, according to Article 85 of the Local Autonomy Act, "Special Metropolitan City, Metropolitan City, and Do shall have the Do governor, and Si/Gun/autonomous Gu shall be established in the Si/Gun/autonomous Gu." Article 94 of the same Act provides that "the head of the local government shall manage and execute the affairs delegated to the head of the local government pursuant to the Acts and subordinate statutes, and Article 95 (2) of the same Act provides that "the head of the local government may delegate or entrust part of the affairs under his/her authority to the competent local government, public organization, or its agency (including office, branch office) as prescribed by the Municipal Ordinance." In light of the purport of this provision, even if the above provisions concerning the form of delegation of authority are prescribed by the former Medical Service Act, the head of the local government may delegate his/her authority to the competent local government pursuant to the Municipal Ordinance, and the head of the local government shall be delegated the authority of the local government to the head of the local government or the head of the Si/Gun/autonomous Gu pursuant to Article 51 (1) 2 of the former Medical Service Act.
Therefore, without examining other grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice)