[2] In a case where a part of the Ordinance is unlawful, whether the whole effect of the resolution is denied (affirmative)

[2] As long as some provisions of the Ordinance violate the law, a re-resolution of the Ordinance shall be denied the validity of the entire Ordinance, even if the remaining provisions are not in violation of the law.

According to the evidence evidence Nos. 1 through 6, the defendant, on June 25, 199, passed a resolution on the draft of the Ordinance on the Establishment and Operation of the Work Council for Local Public Officials of Dong-gu Incheon Metropolitan City (hereinafter referred to as the "Ordinance of this case") at the second plenary session of the 63th extraordinary session of Incheon Metropolitan City on June 25, 199, and transferred it to the plaintiff on the 29th day of the same month. On July 16 of the same year, the plaintiff, who was ordered by the Mayor of Incheon Metropolitan City on July 16 of the same year, received a request for reconsideration on the ground that the provisions of Articles 3 (1) 1 and 8, 6 (7), 11, and 15 (hereinafter referred to as the "the above five provisions of this case") were in violation of the law, but it can be recognized that the fact was re-resolution as the result of the initial resolution at the plenary session of the 64th extraordinary session of the

2. Summary of the plaintiff's assertion

The plaintiff asserts that the part concerning the issue of this case in the Ordinance of this case among the claims of this case exceeds the scope of delegation under the relevant law, and thus, the re-resolution of this case is null and void.

3. Whether the Ordinance of this case violates the statutes

The Act on the Establishment and Operation of the Public Officials' Council (amended by Act No. 5516, Feb. 24, 1998; hereinafter referred to as the "Act") provides for the basic matters concerning public officials prohibited from the establishment of a labor union under the relevant provisions of the State Public Officials Act and the Local Public Officials Act so that they can establish and operate a workplace council (hereinafter referred to as the "council") for the purpose of improving the working environment, improving the efficiency of work, handling grievances, etc.; (i) public officials prescribed in each subparagraph of Article 3(1) through (6) of the Act on the Establishment and Operation of the Council for Public Officials' Organizations; and (ii) public officials engaged in duties similar to those of the Council, such as public officials in the position of command and supervision, may not join the Council; and (iii) the head of an affiliated agency (hereinafter referred to as the "head of the agency") under Article 6(2) of the Act shall make every effort to implement in writing with the Council as much as possible with respect to matters agreed upon by the Council and public officials under Article 7 of the Council.

Accordingly, the Enforcement Decree of the Act (amended by the Presidential Decree No. 15955 of Dec. 31, 1998, hereinafter referred to as the "Decree") provides that the scope of public officials engaged in the duties of command and supervision, which is prohibited from joining the Council, refers to public officials engaged in all duties who exercise the right to direct and supervise other public officials in accordance with Acts and subordinate statutes, directives or the division of duties, and provides that public officials engaged in other similar duties referred to in Article 3 (2) of the Act refers to public officials who are specifically engaged in the duties of the Council in accordance with the Acts and subordinate statutes, directives or division of duties, and Article 3 (1) 9 of the Act provides that public officials engaged in other similar duties referred to in Article 3 (2) of the Act refers to public officials who perform the duties of the Council, and Article 9 (2) of the Act provides that both the head of the agency and the council shall, in principle, make full efforts for the implementation of the agreed matters. Article 12 of the Act provides that public officials shall not be assigned to the Council.

However, according to the evidence Nos. 1 through 5, the Ordinance of this case provides for the scope of public officials who are engaged in the duties of command and supervision under Article 3(1) of the Act, and deletes the division of duties of public officials who are engaged in the duties of command and supervision over other public officials in accordance with the Acts and subordinate statutes and directives, and includes the division of duties of public officials who are engaged in the duties of command and supervision under Article 3(1) of the Act, and deletes the division of duties of public officials who are engaged in the duties of command and supervision under Article 8 of the Act and Decree, and Article 6(7) of the Act provides that "no disadvantage shall be imposed on the members of the Council due to the duties of the Council", and Article 11 provides that "the head of the Council and the head of the establishing institution shall inform the public officials under his/her jurisdiction of the agreed matters, and Article 15 of the Act provides that "the head of the establishing institution may, if requested, use the office and equipment of the Council in question."

In light of the purport of Article 3 (1) 9 of the Decree, which is a basis provision, and the above provisions of the Decree, it is interpreted that the purpose of Article 3 (1) 9 of the Decree is to limit the scope of "public officials engaged in other similar affairs" under Article 3 (2) of the Decree to "public officials performing the duties of the Council". Thus, Article 3 (1) 8 of the Ordinance of this case is to delete "public officials engaged in other similar affairs" and "public officials performing the duties of the Council" under Article 3 (2) of the Act and Article 3 (1) 9 of the Decree, which are the basis provision of the Ordinance of this case. However, if Article 6 (3) of the Ordinance of this case provides for the prohibition of disadvantageous measures related to the organization and operation of the Council, it cannot be viewed as a violation of the provisions of the Act and the Enforcement Decree. In addition, since Article 6 (7) of the Ordinance of this case provides that the members of the Council shall not suffer any disadvantage in personnel affairs due to the Council's duties, it does not violate the purport of the law.

However, Article 3(2) of the Act and Article 3(1)2 of the Decree provide that public officials in such positions shall be prohibited from joining the Council in light of the fact that public officials in such positions may conflict with the request for their duties and matters necessary for the activities of the Council, and that public officials under such command and supervision may not always be the same as those of the Council, and thus, they are prohibited from joining the Council in order to guarantee more than those of the public officials under such command and supervision, even if the Ordinance of this case provides that public officials in the position of direction and supervision based on the division of duties prescribed in the Act and Decree shall be prohibited from joining the Council by eliminating the division of duties prescribed in the Act and Decree as the basis for the direction and supervision, and therefore, it is difficult to interpret that public officials in such position are not permitted from joining the Council in the position of direction and supervision due to the division of duties under the Act and Decree, and therefore, public officials in such position shall make utmost efforts for the performance of their duties with respect to agreements between the Council and the heads of agencies under their control and supervision, which do not violate the provisions of Article 111 of the Ordinance of this case.

Therefore, as long as the provisions of Articles 3(1)1 and 11 and 15 as above are in violation of the statutes, the re-resolution of the Ordinance of this case, even if the remaining provisions are not in violation of the statutes, shall be denied the whole validity of the re-resolution (see, e.g., Supreme Court Decision 92Du31, Jul. 18, 192). Thus, the plaintiff's claim of this case seeking such re-resolution is therefore justified.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted, and the costs of lawsuit are assessed against the defendant who has lost. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)