(영문) 대법원 2013.2.14. 선고 2012추77 판결

The re-resolution made by the defendant on February 13, 2012 on remuneration for fixed-term workers, etc. among the general account budget of Seoul Special Metropolitan City in 2012 is invalid.

Costs of lawsuit shall be borne by the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. The process of the re-resolution of the budget bill of this case;

According to the purport of Gap evidence Nos. 1 through 5 and No. 8, the following facts may be acknowledged.

A. On December 19, 201, the Defendant decided to the Seoul Special Metropolitan City budget bill for the year 2012, including the budget bill of KRW 1,554,373,00 (i.e., KRW 1,715,970 x 90 X 10 x 90 x 10 hereinafter referred to as the “instant budget bill”).

B. On December 30, 2011, the Plaintiff ordered the Seoul Special Metropolitan City Mayor to request the reconsideration of the instant budget bill, and on January 9, 2012, the Seoul Special Metropolitan City Mayor requested the Defendant to reconsideration of the instant budget bill.

C. On February 13, 2012, the Defendant re-decided and finalized the instant budget bill.

D. Meanwhile, on January 26, 2002, based on the management regulations for fixed-term workers in Seoul Special Metropolitan City, the Defendant publicly announced the "Public Notice for Employment of Professor in the name of the Seoul Special Metropolitan City Council Professor in charge of the investigation and analysis of policies and municipal ordinances, ② investigation and analysis of budget and settlement review data, ③ investigation and analysis of administrative affairs audit data, etc.

2. Whether the budget bill of this case is unlawful

A. Article 36(1) of the Local Finance Act provides that "Local governments shall calculate expenses within the scope prescribed by statutes and municipal ordinances and appropriate them in their budget in accordance with reasonable standards." In this context, the term "scopes prescribed by statutes and municipal ordinances" shall not only go against statutes or municipal ordinances directly governing budget compilation standards, etc., nor shall the purpose of executing the relevant expenditure budget should not go against statutes or municipal ordinances. Thus, in the event that the purpose of executing the budget decided by the local council is against statutes or municipal ordinances, the relevant budget bill resolution shall not be effective.

Meanwhile, employing a paid assistant to a local council member causes significant changes to the current legal system on the status, status, and treatment of a local council member, which constitutes legislative matters to be prescribed by the law of the National Assembly (Article 9 of the Act on Allowances for National Assembly Members, etc. as assistant staff to assist the legislative activities of the local council member). However, Article 33 of the Local Autonomy Act provides that the status, status, and treatment of a local council member shall be paid for parliamentary activity expenses, public duty travel expenses, and monthly allowances, and Article 34 of the Local Autonomy Act provides that the local council member shall be paid for death or injury caused by his/her duties during the session, and there is no legal ground for having a paid assistant to a local council member as well as the Local Autonomy Act and other statutes. Article 90 of the Local Autonomy Act provides that a secretariat (State, division) and staff member shall be appointed to handle the affairs of the local council council. However, this provision does not provide for the assistance to the operation of the local council member and all administrative affairs incidental thereto. 16.

B. In light of such legal principles, we examine whether the instant parliamentary internship, which is the purpose of executing the instant budget bill, violates the statutes or municipal ordinances.

As seen earlier, the duties of the instant parliamentaryton include the investigation and analysis of policy and municipal ordinance draft data, investigation and analysis of budget and settlement review data, and investigation and analysis of administrative affairs audit data. The duties are identical or similar to the collection and research of parliamentary materials, which are the activities of the local council members whose expenses are compensated through parliamentary activity expenses, and auxiliary activities therefor. As such, it is reasonable for the instant local council to have the instant parliamentary intern to have them as well as to have them more practically paid-in staff than paying parliamentary activity expenses for the collection and research of parliamentary materials in charge of the local council members and their auxiliary activities for this purpose, and it does not mean that the instant parliamentary intern is a fixed-term worker. Accordingly, this is not a legislative matter to be prescribed by the individual local council, but rather a legislative matter to be prescribed by the National Assembly. As seen earlier, there is no legal basis for having the instant local council intern under the Local Autonomy Act as well as any other statutes.

Thus, among the budget bill of this case, the "Remuneration for a part of a part-time worker, etc. in the U.S. operating class to create a job" with the appointment of the representative of the Council of this case and the payment of remuneration for them is against the provisions of Article 36 (1) of the Local Finance Act, which provides that the expenses shall be calculated within the scope prescribed by the statutes and municipal ordinances, and shall be included in the budget.

3. Conclusion

Therefore, the Plaintiff’s claim of this case is accepted, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.