(14-2 KCCR 362, 2001Hun-Ra1, October 31, 2002)

In this case, the Constitutional Court ruled that the Rule aboutAllowances for Local Public Officials made by the President to providea criterion for overtime pay of local public officials did not infringe on the power of the local government.

A. Background of the Case

Administrative rule-making, or rule-making by the Executive Branch,is a part of the national law put into effect based on the delegation of legislation by statutes. It can be subdivided into the administrative regulations and the administrative guidelines. All citizens arebound by the former, while the latter has effects of regulating relations within an administrative organization or between those in specialpositions subject to application of the public law. Presidential decree,ordinance of the Prime Minister, and ordinance of the Minister areexamples of the administrative regulations while some forms of administrative guidelines include public notification, directive, and established rule.

On January 29, 2001, the President of the Republic of Korea issuedthe Rule about Allowances for Local Public Officials containing a provision (hereinafter referred to as the "instant provision") stipulating that"matters concerning criterion and method of payment for overtime work should be determined by the head of local governments within the scopepredetermined by the Minister of Government Administration and Home Affairs." Under the rule, the Gangnam-Gu Office was required to obeythe scope predetermined by the Minister of Government Administration and Home Affairs in setting up the criterion and method of payment for overtime work of its local public officials.

The Head of Gangnam-Gu filed a competence dispute and soughtrevocation or confirmation of voidness of the provision arguing that the instant provision, a mere administrative guidelines issued as in

struction of the Minister of Government Administration and HomeAffairs, restricts power of the head of the local government, and henceinfringed on the constitutional legislative power of the local government against Article 117(1) of the Constitution stipulating that "Localgovernments ... may enact provisions relating to local autonomy, withinthe limit of Acts and subordinate statutes."

B. Summary of the Decision

The Constitutional Court unanimously ruled that administrativerule-making of the instant provision by the President did not infringeon the power of the plaintiff as follows:

(1) Article 117(1) of the Constitution stipulates that "Local governments shall deal with administrative matters pertaining to the welfareof local residents, manage properties, and may enact provisions relatingto local autonomy, within the limit of Acts and subordinate statutes,"thereby, guaranteeing the local autonomous system and providing abasis for the autonomous powers of the local government. The autonomous powers guaranteed by the Constitution include legislative powerof the local government to enact rules concerning autonomous governance, power to determine personnel management as well as remuneration and benefits for the public officials of the local government, andpower to compile and execute related budgets. These autonomous powers, however, are formed and restricted by Acts passed by theLegislative Branch. Article 117(1) of the constitution clearly mentionsthat local governments can make rules within the limit of Acts and subordinate statutes, and Article 118(2) of the Constitution stipulatesthat matters pertaining to the organization and operation of localgovernments are to be determined by Act.

(2) "Act and subordinate statutes" in Article 117(1) of the Constitution include not only Acts, presidential decrees, ordinances of thePrime Minister, and ordinances of the Ministers but also administrative guidelines that function as administrative regulations. The Constitutional Court ruled that "an administrative guidelines such as publicnotifice, directive, or established rule will function as a administrative regulations in conjunction with the enabling statutes thatdelegated the detailed rule-making to the administrative guidelinesas long as the established rule contains contents within the limits of delegation by the enabling statutes (4 KCCR 444, 449, 91Hun-Ma25, June 26, 1992)."

"The scope predetermined by the Minister of Government Administration and Home Affairs" under the instant provision refers to "thescope determined by the administrative guidelines that functions as administrative regulations," and not to the scope determined by theadministrative guidelines that does not function as administrativeregulations. Therefore, the instant provision does not violate Article

117(1) of the Constitution allowing legislation of provisions relatingto local autonomy within the limit of Acts and subordinate statutes.

(3) The Local Public Officials Act stipulates that matters concerning remuneration of local public officials should be determined bypresidential decree. Let us examine whether the instant provisiondelegating to the Minister of Government Administration and HomeAffairs the detailed rule-making of matters that should be determinedby presidential decree violates the legislative power of the GangnamGu Government.

When a statute has delegated detailed rule-making to a lower rule,the delegated rule cannot delegate again determination of details ofthe rules to lower rules without specifying the scope of delegation.Further re-delegation of rule-making, however, will be allowed ifthe delegated rule determines the framework of regulation and thendelegates specific rule-making about certain aspects of contents thusdetermined.

In the case of the instant provision, it does not comprehensively delegate detailed rule-making of what it has been delegated. It has determined basic contents of delegated rule-making, and further delegated rule-making of details of a specific part. Therefore, it did notbreach the limits of legislative delegation.

(4) The instant provision determines the basic matters concerningovertime pay of public officials, and delegates the detailed rule-makingabout the scope of criterion and methods of payment for overtimework to the Minister of Government Administration and Home Affairs.The Gangnam-Gu Government could exercise the legislative powerwithin the limits provided thus, decide specific details concerning overtime pay through its own rules, compile and execute related budgets,and decide personnel management issues during the process. Therefore, the instant provision does not infringe on the essential aspectsof the autonomous power of the Gangnam-Gu Government guaranteedby the Constitution.

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