[1] Whether it is unlawful to determine the number and scope of members of the local government's public property deliberation council (negative)

[2] Whether the ordinances that grant the chairman the right to recommend members of the public property deliberation council is legitimate (negative)

[3] The court's measures where part of the bill is unlawful

[1] The purport that the Local Finance Act delegates the organization and operation of the public property deliberation council to the local government in question is to be organized in accordance with the local government's unique circumstances in terms of the composition and operation of the public property deliberation council, and therefore, how to determine the fixed number of the members of the public property deliberation council and the composition expenses of the members is within the legislative discretion to be determined by the local council, and it is within the scope of the legislative power to enact municipal ordinances. Thus, the revised municipal ordinances stipulate that "the Si public property deliberation council shall be composed of 12 members and 9 members and 3 members of the Si public property deliberation council shall be composed of 12 members and 9 members of the Si public property deliberation council shall be composed of 12 members of the Si public property deliberation council, which is relatively high in the participation ratio of the City council by making the nine members of the Si public property deliberation council be composed of 12 members of the Si council and it shall not be deemed that the revised municipal ordinance is a matter belonging to the legislative discretion of

[2] The Local Autonomy Act provides that the head of a local council and the head of a local government shall be granted the independent authority and shall be in balance with mutual checks, barring any special provision in the Act, it shall not be permitted to regulate any violation of the inherent authority beyond the scope of checks. The Ordinance that allows the other party to exercise one’s own authority violates the Local Autonomy Act. Therefore, passive and ex post facto intervention in the personnel rights of the executive body may be allowed if it is required within the scope of checks, but it shall not be allowed to independently exercise the personnel rights of the executive body, and actively intervene in advance. Therefore, in light of the status and authority of the chairman of the local council and the members of the local council, there is no authority to participate in the executive body as the chairperson of the executive body, and it shall not be allowed as a municipal ordinance. Accordingly, it is not possible to permit the appointment of the head of the executive body of the local government as the member of the public property deliberative council as the member of the local council and the head of the Si to recommend the head of the executive body as a member of the local government.

[3] If part of the revised bill is unlawful, the re-resolution of the revised bill shall be denied in its entirety.

[1] Article 78 of the Local Finance Act / [2] Article 78 of the Local Finance Act, Articles 35, 36, 37-2, 43, 92, 94, and 96 of the Local Autonomy Act / [3] Articles 19 and 159 of the Local Autonomy Act

[2] [3] Supreme Court Decision 92Da116 delivered on March 9, 1993, Supreme Court Decision 93Da175 delivered on April 26, 1994 (Gong194Sang, 1506) / [2] Supreme Court Decision 92Da31 delivered on July 28, 192 (Gong192, 2575)

Cheongju Mayor (Attorney Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Cheongju-si Council (Attorney Jeon Il-sung, Counsel for the plaintiff-appellant)

April 23, 1996

A re-resolution on the draft of the Ordinance on the Management of Public Property in the Cheongju City, which was made by the defendant on December 27, 1995, shall not be effective. Litigation costs shall be borne by the defendant.

1. The circumstances leading to the instant case and the content of the amended Municipal Ordinance;

According to the evidence No. 1-4, evidence No. 1-2, evidence No. 2-1-2, evidence No. 3, evidence No. 4-1-3, evidence No. 5-1 and No. 2, the defendant decided on Nov. 21, 1995 on Nov. 21, 1995, the amendment Ordinance No. 152, and transferred it to the plaintiff on Dec. 12 of the same year. The plaintiff requested reconsideration on Dec. 12 of the same year, but the defendant decided on the same resolution at the plenary session at the plenary session at the 153th regular session at the 9th regular meeting, and the decision No. 1-2, evidence No. 3, evidence No. 4-2, the previous amendment Ordinance No. 1-3, and evidence No. 5-1 and No. 2, the public official of the Si Council at the 3th regular meeting at the 153th regular meeting, and the Mayor at the 16th regular meeting (the "Public Property No. 3)" shall be newly appointed the Mayor at the 197.

2. Summary of the plaintiff's assertion

A. Article 78(1) of the Local Finance Act provides that "The Public Property Deliberation Council shall be established in each local government to respond to the advice of the head of the local government on the acquisition, management and disposal of public property" and stipulates that "The Public Property Deliberation Council shall be established in each local government to respond to the request of the head of the local government on the acquisition, management and disposal of public property." Despite the fact that the amendment bill of this case allows the local council to intervene in advance in the executive organ's personnel rights by organizing 12 members of the Cheongju City Public Property Deliberation Council as a Si Council and allowing 3/4 of its members as a Si Council. This is illegal

B. Furthermore, the amendment bill of this case grants the chairman of the City Council the right to recommend nine members of the public property deliberative council. The chairman of the local council has the same status as an individual except for the status of representing the Council in a systematic and prior sense, so the chairman has no right to participate in the personnel rights of the executive organ as an individual, and it cannot be allowed by municipal ordinances. Accordingly, the amendment bill of this case where the chairman of the City Council recommends a part of the members of the public property deliberative council is illegal.

3. Judgment of party members

A. As to the legitimacy of setting the number and scope of members by municipal ordinances

Article 78 (1) of the Local Finance Act provides that "The public property deliberation council shall be established in each local government in order to provide advice on the acquisition, management and disposal of public property to the head of the local government." Paragraph (2) provides that "the composition and operation of the public property deliberation council under paragraph (1) shall be prescribed by the Municipal Ordinance of the local government concerned." The purpose of which the Local Finance Act delegates the composition and operation of the public property deliberation council to the local government concerned in consideration of the special circumstances of each local government in the composition and operation of the public property deliberation council, and therefore, the organization of the public property deliberation council of the local government concerned, namely, how to determine the fixed number of the members of the public property deliberation council and the composition expenses of the members of the local government, is within

Therefore, among the amendment bill of this case, Article 61 (1) provides that "The Cheongju-si Public Property Deliberation Council shall be comprised of 12 members and shall be comprised of 9 members of the Si Council and 3 relevant public officials." According to the above provision, the participation ratio of the City Council by having nine members of the Cheongju-si Public Property Deliberation Council be composed of 12 members of the Si Council shall be relatively high. However, it is nothing more than that of the defendant's legislative discretion. However, the amendment bill of this case is an issue belonging to the defendant's legislative discretion, and it cannot be said that there is an unlawful violation of law regarding the scope of separation and distribution of authority with executive agencies and decision-making agencies in accordance

Since the composition of various committees, such as the National Security Council of the Plaintiff and the Silju City, such as the Committee for Deliberation on Public Property of this case, differs from the case of the Council for Deliberation on Public Property of this case, the basis and the form of regulations for the establishment thereof cannot be compared in the same line. Meanwhile, since the Local Finance Act delegates the organization and operation of the Council for Public Property of other local governments to the Ordinance of the relevant local government, it cannot be invoked that the composition of the Council for Public Property of this case

Therefore, the plaintiff's assertion on this point is without merit.

B. As to the legitimacy of the recommendation of members of the City Council on Public Property by the chairman of the City Council

(1) The Local Autonomy Act provides that the head of a local council and the head of a local government shall be granted an independent authority and a mutual check and balance. Thus, barring any special provision in law, a provision that infringes on inherent authority beyond the scope of checks shall not be made, and the Ordinance that allows the other party to exercise one’s own authority shall be deemed to be in violation of the Local Autonomy Act. Therefore, passive ex post facto intervention in the personnel rights of the executive agency shall be permitted if it is required within the scope of checks. However, it shall not be permitted to exercise the personnel rights of the executive agency independently or equally in an equal position and actively intervene in advance (see, e.g., Supreme Court Decisions 92Da116, Mar. 9, 193; 93Do175, Apr. 26, 1994).

(2) In addition, among the amendment bill of this case, the "Recommendation of the Chairperson of the City Council" as stipulated in Article 61 (2) of the amendment bill of this case is not clear whether the Chairperson is the representative or the Chairperson is the recommended by the Chairperson. However, the resolution of the City Council is not the requirement but it is interpreted that the Chairperson is the recommended by the Chairperson.

However, a member of a local council has the status as a member of the local council under the Local Autonomy Act and has political status as a representative of residents in the autonomous district. A member of the local council has the right to propose, question, debate, voting, right to vote, right to vote, right to vote, right to vote, and right to vote for criticism, surveillance, and check of the executive organ, the local council, which is a resolution authority, is located in the local council, and is not an individual.

In addition, the chairman of the local council shall represent the local council, organize its proceedings, maintain order in the meeting of the council, and supervise the affairs of the council (Article 43 of the Local Autonomy Act). Here, the term "representative of the council" shall not represent the local council in a systematic and acquired sense, nor shall it represent the local council's proceedings.

Therefore, the chairman of the local council shall have the same status as an individual member except the above position, and in light of the above status and authority of the chairman of the local council and the individual member, it shall be deemed that there is no authority to participate in the executive agency's personnel rights as an individual member, and it shall not be allowed as an ordinance (see, e.g., Supreme Court Decisions 92Da116, Mar. 9, 1993; 93Do175, Apr. 26, 1994).

(3) Furthermore, the fact that the members of the Public Property Council consisting of nine members of the City Council and the members to be the members of the City Council shall be the joint exercise of personnel rights in fact. It is merely that the Public Property Council's affairs as the advisory organ are to provide opinions as reference to the decision-making of the market in response to the advice of the mayor or voluntarily in response to the advice of the mayor, and even if the City Mayor is not bound by its opinion (see Supreme Court Decision 93Ra144 delivered on May 10, 1994). In light of the fact that the activities of the Public Property Council are carried out by the local government's enforcement affairs, and the responsibility for such activities is ultimately carried out by the head of the executive organ, it is difficult to permit the Chairperson to recommend nine members of the City Council, who are the members of the Public Property Council, to actively intervene in the personnel rights of the executive organ in advance,

Therefore, the plaintiff's assertion on this point is justified.

4. Conclusion

As seen above, if part of the draft amendment of this case is illegal, and if so, the resolution on the draft amendment of this case shall be denied in its entirety (see Supreme Court Decisions 92Da31, Jul. 28, 1992; 92Do116, Mar. 9, 193; 93Do175, Apr. 26, 1994; 93Do175, Apr. 26, 1994, etc.). Accordingly, the plaintiff's claim of this case shall be accepted, and litigation costs shall be borne by the defendant who is the losing party, and it is so decided as per Disposition with the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)