[1] In a case where the purpose of Article 34(1) of the former Enforcement Decree of the Local Autonomy Act stipulating that the members of the Deliberation Committee on the Maintenance of Local Autonomy shall be recommended by academic circles, etc., and the procedure for the selection of deliberation committee members are not strictly consistent with the above provision, whether the resolution of the Deliberation Committee or the ordinances based on such

[2] The purport of Article 33 of the former Local Autonomy Act, Articles 33(1), 34(5), and 34(6) of the former Enforcement Decree of the Local Autonomy Act, which stipulate criteria for payment of parliamentary activity expenses to be paid to the pertinent local council members by municipal ordinance, is to limit to the amount determined by the Deliberation Committee on Maintenance of parliamentary Activities, and to separately stipulate the composition of

[3] In a case where the local government's deliberation committee on the maintenance of a local government is organized in accordance with the procedure prescribed by the relevant statutes and is autonomously determined "limit on parliamentary activities expenses, etc.", but there are parts that do not meet the residents' sentiments or results of public opinion poll, whether such decision is unlawful (negative with qualification

[1] Considering the purport of Article 33(1), (2), and (3) of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009), Article 34(1) and (2) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008; hereinafter “Enforcement Decree”), the form and content of the provisions of Article 34(1) and (2) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008), and the standards for payment of expenses for parliamentary activities, travel expenses, and monthly allowances (hereinafter “expenses for parliamentary activities, etc.”) to present in advance the scope of the determination prior to the determination by municipal ordinance, the purpose of Article 34(1) of the Enforcement Decree provides that the members of the Council shall be recommended from academic circles, etc. when selecting members of the Council is to secure diversity and diversity of the composition of the Council.

[2] Article 33 of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009); Article 33(1), Article 34(5), and Article 34(6) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008) stipulate criteria for the payment of parliamentary activity expenses, travel expenses, monthly allowances (hereinafter “ parliamentary activity expenses, etc.”) to be paid to the relevant local council members by municipal ordinance, and limit the organization of the council, procedure and scope of “limit on parliamentary activity expenses, etc.” to the extent of the amount determined by the council for deliberation on the improvement of the relevant local government (hereinafter “Council”) to separately define criteria for the payment of parliamentary activity expenses, etc. to meet the relevant local government’s financial capacity and to ensure transparency and transparency in parliamentary activity expenses within the scope of “limit on parliamentary activity expenses, etc.” determined by the Council following the procedures for collecting opinions.

[3] Article 33(1) and (2) of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009); Article 33(1)1, 2, and 3 of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008), which are paid to local council members, shall be limited to the amount determined by the Deliberation Committee on the Maintenance of Local Government (hereinafter “Deliberation Committee”) to ensure objectivity and adequacy of the criteria for payment of expenses for parliamentary activities, travel expenses, monthly allowances (hereinafter “expenses for parliamentary activities, etc.”) in order to ensure the objectivity and appropriateness of expenses for parliamentary activities, etc. as prescribed by municipal ordinances. Meanwhile, the Deliberation Committee presented the criteria and procedures to comply with the “limit on expenses for parliamentary activities, etc.” Unlike the expenses for monthly activities or travel expenses, and only list certain expenses, such as income level without establishing specific and substantial criteria for the calculation method thereof.

Therefore, where the Council is organized by the procedures prescribed by the relevant statutes and autonomously determines the “limit on parliamentary activities, etc.”, even if there are parts that are not consistent with the residents’ sentiments or the results of the public opinion poll during the decision process, it is merely a formal process to the extent that it is impossible to achieve the legislative intent that reflects the resolution of the Council, and it does not go through the procedures, and it does not seem to be inappropriate to deem that the “limit on parliamentary activities, etc.” by the Council is unlawful.

[1] Article 33(1), (2), and (3) of the former Local Autonomy Act (Amended by Act No. 9577, Apr. 1, 2009); Article 34(1) and (2) of the former Enforcement Decree of the Local Autonomy Act (Amended by Presidential Decree No. 21075, Oct. 8, 2008); Article 33 of the former Local Autonomy Act (Amended by Act No. 9577, Apr. 1, 2009); Articles 33(1), 34(5), and (6) of the former Enforcement Decree of the Local Autonomy Act (Amended by Presidential Decree No. 21075, Oct. 8, 2008); Article 34(1) and (3) of the former Enforcement Decree of the Local Autonomy Act (Amended by Act No. 9577, Apr. 1, 2009); Article 34(1) and (2) of the former Enforcement Decree of the Local Autonomy Act (Amended by Presidential Decree No. 21308, Jan. 28, 201)

[1] Supreme Court Decision 2010Du13524 Decided July 26, 2012

Plaintiff 1 and 5 others (Law Firm Chungcheong, Attorneys Choi Woo-young et al., Counsel for the plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Attorney Condition-ho)

Seoul High Court Decision 2009Nu20597 decided February 15, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the allegation of illegality in the composition of the Deliberation Committee on Maintenance and Improvement and the invalidity of the ordinances thereunder

Article 33 of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009; hereinafter referred to as the "Act") shall be paid to local council members for expenses for parliamentary activities, travel expenses and monthly allowances (hereinafter referred to as "expenses for parliamentary activities, etc."), and the standards for payment shall be prescribed by municipal ordinance of the relevant local government (hereinafter referred to as the "Council"), as prescribed by Presidential Decree, within the scope determined by the Deliberation Committee on Maintenance and Improvement of Local Governments (hereinafter referred to as the "Deliberation Committee"), and matters necessary for the organization, operation, etc. of the Council shall be prescribed by Presidential Decree (Article 3). According to such delegation, Article 34 of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008; hereinafter referred to as the "Enforcement Decree") provides for the composition of the Council; Article 33 (3) of the Public Official Election Act; Article 33 (1) of the Act provides for the members commissioned by the head of the relevant local government and the chairperson of the local government as one year or more.

Considering the purport of the Act and subordinate statutes and the purport of the Act as a separate deliberation and resolution body to present the criteria for the payment of parliamentary activities, etc. to be paid to local council members in advance prior to the determination of the scope of such determination, the legislative intent of Article 34(1) of the Enforcement Decree to ensure diversity and objectivity in the formation of the Council is to ensure diversity and objectivity in the composition of the Council. Thus, even if the procedures for the selection of review committee members are not strictly consistent with the above provisions, it cannot be determined that the relevant Council’s resolution is unlawful or that the Ordinance on parliamentary activities, etc. based thereon is unlawful unless it is deemed that the legislative intent as to the composition of the Council was substantially impaired (see Supreme Court Decision 2010Du13524, Jul. 26, 2012).

The court below rejected the plaintiffs' assertion that, although the law does not require multiple candidates to be recommended from academic circles, etc., it does not require multiple candidates to be recommended by the Ministry of Government Administration and Home Affairs, but it is merely an administrative guidance level inside the administrative organization, and thus it is not effective as a law, even if the defendant commissioned candidates as members of the deliberation committee, the composition of the deliberation committee in this case cannot be deemed unlawful, and as a result, the defendant did not separately examine whether the candidates for the deliberation committee are persons with interests in Seongdong-gu Council in addition to the qualifications prescribed by the law, and as a result, the defendant commissioned members of the organization to be supported by the Seongdong-gu Council as members of the deliberation committee, as long as such persons do not meet the requirements for non-disqualification prescribed in the proviso of Article 34 (2) of the Enforcement Decree, since the organization of the deliberation committee in this case was unlawful, the organization of the deliberation committee in this case is unlawful.

In light of the above legal principles and records, we affirm the judgment of the court below, and there is no error in the misapprehension of legal principles as to the composition of the council or the qualification of the deliberation committee members as alleged in the grounds of appeal.

2. As to the illegality in the procedures for gathering the opinions of local residents and the invalidity of the municipal ordinance

As seen earlier, Article 33 of the Act delegates the formation and operation of the Council as an organization that presents the scope of determination of parliamentary activity expenses, etc. to be prescribed by municipal ordinances, and the Enforcement Decree shall determine matters necessary for the composition and operation of the Council as well as the selection procedures for its members as well as the standards for payment of parliamentary activity expenses, etc., by municipal ordinances within the scope of the amount determined by the Enforcement Decree (Article 33(1)); (2) The Council shall make a resolution on the determination of the amount with the consent of a majority of the incumbent members, including the chairperson, in consideration of the financial capacity of the relevant local government (Article 34(5)); and (3) When the Council intends to determine the amount, it shall undergo the procedures for collecting the opinions of local residents, such as public hearings and resident opinion surveys, to ensure the propriety and transparency of

As such, the purpose of the Act and subordinate statutes is to limit the standard for payment of parliamentary activities, etc. to the amount determined by the Council (hereinafter referred to as “limit on parliamentary activities, etc.”) and to separately set the composition of the Council and the procedure or scope of “limit on parliamentary activities, etc.” to be paid to local governments in accordance with the specific circumstances, such as the financial capacity of the relevant local government. In the process, it is to ensure the appropriateness and transparency of the standard for payment of parliamentary activities, etc. by imposing restrictions to determine the standard for payment of parliamentary activities, etc. within the “limit on parliamentary activities, etc.” which

After finding facts as indicated in its reasoning based on evidence, the lower court determined that the instant deliberation council’s opinion survey conducted an opinion survey with 1,00 local residents by requesting a specialized public opinion poll institution to conduct a public opinion poll method, i.e., the survey proposal, which is the basis of the opinion survey, was prepared by nine members attending the deliberation committee through a debate, including questions and options favorable to the increase of parliamentary activity expense, but it was possible to understand the purport of raising the parliamentary activity expense, etc. by indicating together the parliamentary activity expenses, etc. currently received by the members of Seongdong-gu Council; in order to raise response rate in the survey by A.S method, it is inevitable to conduct an investigation with a brief statement about essential matters rather than providing sufficient information on various factors required for response; in determining parliamentary activity expenses of local residents under the relevant statutes, it cannot be deemed that the results obtained from the process cannot be taken into account; and in addition, it cannot be deemed that the deliberation council’s opinion was unlawful and reasonable in the instant case’s opinion-based provision 3.

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the procedures for gathering opinions from local residents.

3. As to the illegality of the decision on "limit on parliamentary activities expenses, etc." and the invalidity of the ordinances thereunder

As seen earlier, Article 33(1) and (2) of the Act provides that the criteria for the payment of parliamentary activities, etc. to be paid to local council members shall be determined by the Municipal Ordinance of the relevant local government within the scope determined by the Municipal Council, as prescribed by Presidential Decree. As such, Article 33(1) of the Enforcement Decree provides that the criteria for the payment of parliamentary activities, etc. shall be determined by Municipal Ordinance within the scope of the amount determined by the Deliberative Council in consideration of the financial capacity, etc. of the relevant local government, and the Deliberative Council shall determine parliamentary activities and travel expenses within the scope of the amount prescribed in the attached Table of the Enforcement Decree (Article 1 and 2), and the monthly allowances shall be determined within the scope of “amount determined by comprehensively taking into account the income level of local

According to the law, the expenses for parliamentary activities, etc. are limited to the amount determined by the Council to ensure the objectivity and appropriateness of the criteria for the payment of expenses for parliamentary activities as prescribed by municipal ordinances. Meanwhile, the Council presented the criteria and procedures to follow when determining the “limit on expenses for parliamentary activities, etc.” unlike expenses for parliamentary activities or travel expenses. As regards monthly allowances, certain considerations, such as income level, etc. of local residents are only listed without setting specific and substantial standards, unlike expenses for parliamentary activities or travel expenses. Therefore, even if the Council voluntarily determines the “limit on expenses for parliamentary activities, etc.,” which is constituted according to the procedures prescribed by relevant statutes and voluntarily determines the “limit on expenses for parliamentary activities, etc.,” even if there are some parts inconsistent with the result of such determination, it cannot be deemed unlawful to deem that the “limit on expenses for parliamentary activities, etc.,” which was conducted by the Council, to be unlawful.

After finding facts as stated in its reasoning based on evidence, the court below rejected the plaintiffs' assertion that the "limit on parliamentary activities expenses, etc." made by the council of this case cannot be deemed to violate Article 33 (1) 3 of the Enforcement Decree on the ground that the decision of "limit on parliamentary activities expenses, etc." including monthly allowances of this case cannot be deemed to be unreasonable in light of the result of the survey on local residents or the average annual household income of urban workers, etc., on the ground that it is clear that the "limit on parliamentary activities expenses, etc." of the council of this case cannot be deemed to violate Article 33 (1) 3 of the Enforcement Decree on the ground that the decision of this case cannot be deemed to violate Article 33 (1) 3 of the Enforcement Decree on the ground that the above decision of this case was unlawful on the ground that the above decision of this case was unlawful because it is unlawful in its purport and reality.

In light of the above legal principles, the judgment of the court below is also acceptable, and there is no error in the misapprehension of legal principles as to the determination of "limit on parliamentary activities expenses, etc." of the Council as alleged in the grounds of appeal

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)