[과태료부과처분무효확인][집28(3)행,132;공1981.2.1(649) 13470]
The amount of a fine for negligence not exceeding five times the amount of a fine for negligence under Article 6 of the Seoul Metropolitan Government Ordinance on Collection of River Occupancy Fees.
The "administrative fine not exceeding five times" under Article 6 of the former Ordinance on Collection of Fees for Occupancy and Use of Rivers, etc. of the Seoul Metropolitan Government shall not exceed 50,000 won under the Local Autonomy Act, which is the delegated law.
Article 128 (2) of the Local Autonomy Act and Article 6 of the Seoul Metropolitan Government Ordinance on Collection of River Occupancy Fees, Etc.
[Judgment of the court below]
Attorney Han-soo et al., Counsel for the defendant
Seoul High Court Decision 79Gu323 delivered on July 1, 1980
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
Article 6 of the Seoul Special Metropolitan City Ordinance on Collection of River Occupancy Charges, etc. at the time of this disposition, the Mayor may, ex officio, impose and collect an administrative fine not exceeding five times the occupancy charges on a person who occupies and uses a river without permission (this provision has been removed at present). The provision provides that "a person who illegally uses a public facility referred to in the latter part of Article 128 (2) of the Local Autonomy Act may impose an administrative fine not exceeding 50,000 won (in applying Article 4 (3) of the Act on Temporary Measures such as Fines, etc., 'the monetary exchange' as ‘the monetary exchange' as ‘the monetary exchange'). Therefore, the theory that the above provision of the Ordinance is null and void because it is not subject to the delegation
However, as seen above, Article 128(2) of the Local Autonomy Act, which is a delegated law, provides for a fine for negligence not exceeding 50,000 won, and thus, the fine for negligence not exceeding five times the fees for occupation and use under Article 6 of the above Ordinance is the amount within the limit of 50
Nevertheless, the administrative fine of KRW 6,025,136 (the amount of KRW 6,025,139) is not a dispute between the parties. Therefore, such amount is more than 100 times the upper limit as prescribed by the above Act or municipal ordinances is more than 100 times the defect is significant and obvious, and the disposition exceeding the limit is not null and void.
However, the judgment of the court below which rendered the lawful disposition of this case shall be deemed to have committed an error in interpreting the above Municipal Ordinance, and since it is clear that the illegality affected the result of the judgment, it is reasonable to see that it erred in the interpretation and application of the above Municipal Ordinance. Therefore, the judgment of the court below is not reversed, but it is reasonable to see that the judgment of the court below is erroneous.
Therefore, the judgment of the court below is reversed and it is so decided as per Disposition by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)