[2] Whether it is permissible to enact a municipal ordinance that actively intervenes in advance by the local council on matters concerning the self-evaluation of government affairs under Article 18 of the Framework Act on the Evaluation of Government Affairs (negative)

[2] Article 18 of the Framework Act on the Evaluation of Government Affairs does not allow a local government’s ordinances that actively intervene in advance, not to the extent of passive and ex post facto involvement in matters concerning self-evaluation affairs, which are stipulated as the authority of the head of the local government, within the scope of checks.

The following facts may be acknowledged in full view of the overall purport of the pleadings in the evidence Nos. 1 through 7 and evidence Nos. 1 and 5-1 and 2 of the evidence Nos. 5-2.

A. The Defendant passed a resolution on April 21, 2006 on the Ordinance (hereinafter “Ordinance”) and transferred it to the Plaintiff. On May 12, 2006, the Plaintiff asked the Defendant for reconsideration on the ground that the Ordinance Ordinance violates Article 18(5) of the Framework Act on the Evaluation of Government Affairs, but the Defendant re-resolutioned the Ordinance as the original bill on June 20, 2006, thereby becoming final and conclusive.

B. The main contents of the Ordinance of this case are as follows.

The ordinance of this case shall be formulated with the aim of securing the efficiency and accountability of the establishment of a performance management system and enhancing the credibility of the residents of the Do government (Article 1), the Governor and the head of the public institution shall establish and implement an annual implementation plan to achieve performance objectives of the relevant year (hereinafter referred to as "performance management implementation plan"), including the duties and strategy of the relevant agency, performance indices, and results of the evaluation of the relevant year before three years, and the Governor shall ensure the autonomy and independence in conducting the self-evaluation (Article 5), and the head of the competent Do Governor shall establish the plan for self-evaluation of the outcomes of the self-evaluation of the Jeju-do by not later than the end of January 31 each year, and the head of the competent Do Governor shall establish the plan for self-evaluation of the outcomes of the plan for self-evaluation (the head of the competent Do government office shall establish the plan for self-evaluation of the outcomes of self-evaluation of the plan for self-evaluation, including the objectives, implementation plans, and indexes of the plan for self-evaluation of the plan for self-evaluation.

2. Whether the Ordinance of this case violates the law

A. The main sentence of Article 15 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances concerning their affairs within the scope of statutes." Since "within the scope of statutes" refers to "within the scope not violating Acts and subordinate statutes," it shall not be effective in cases where municipal ordinances enacted by local governments violate Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2002Do23, Apr. 26, 2002; 2003Do51, Jul. 22, 2004).

B. Therefore, we examine whether the Ordinance of this case violates the legislation.

Inasmuch as the Local Autonomy Act grants independent authority to the local council and the heads of local governments and maintains mutual checks and balance, provisions that infringe other parties’ inherent authority beyond the scope of checks cannot be made by Municipal Ordinance unless otherwise expressly provided for in Acts (see Supreme Court Decisions 96Do15, May 14, 1996; 2001Do57, Nov. 27, 2001; 2001Do57, etc.). Furthermore, the assessment of various policies, etc. conducted individually and repeatedly shall be integrated and organized, and the self-assessment of the policies under their jurisdiction shall be based on the basis of the self-assessment of the government affairs. Article 18 of the Framework Act on the Assessment of Government Affairs, including local governments and public institutions, shall actively establish and operate self-evaluation organizations and self-evaluation committees under their jurisdiction, and the head of the local government shall actively establish the self-evaluation plan for the purpose of securing fairness and objectivity of the government affairs under his/her jurisdiction (Article 18 of the Framework Act on the Evaluation of Government Affairs).

However, among the proposed ordinances of this case, Article 8 of the Guidelines for Self-Evaluation, Article 9 of the Framework Act on the Establishment of Self-Evaluation Plans, Article 10 of the Regular Evaluation, and Article 11 of the Framework Act on the Disposal of Self-Evaluation, etc. shall be deemed to have violated Article 18 of the Framework Act on the Evaluation of Government Affairs, as it directly prescribes the subjects, procedures, etc. of self-evaluation beyond the extent of passive and ex post involvement within the scope of checks without any legal basis, and as long as each provision is in violation of the statutes, the re-resolution of the proposed ordinances of this case, even though the provisions of other Acts and subordinate statutes are not in violation of the Acts and subordinate statutes, shall be all denied (see, e.g., Supreme Court Decisions 200Do36, Nov. 10, 200; 201Do57, Nov. 27, 2001). The plaintiff's claim seeking the invalidation of the re-resolution of the proposed ordinances of this case is reasonable.

3. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench to accept the plaintiff's claim.

Justices Park Si-hwan (Presiding Justice)