[1] Whether a local council may establish a new check system that infringes on the executive organs' inherent authority although the local council does not have any provision in the law (negative)

[2] The case holding that Article 12 (6) of the Seocho-gu Seoul Metropolitan Government Ordinance on Inspection and Investigation of Administrative Affairs, which provides that "the Seocho-gu Seoul Metropolitan Government Ordinance on the Inspection and Investigation of Administrative Affairs," which provides that a local council may demand disciplinary action against a specific public official belonging to the executive agency on the ground of a specific disciplinary ground that the local council failed to comply with the member's request in good faith, is unlawful

[1] Articles 22, 39, and 41 of the Local Autonomy Act / [2] Articles 22, 39, and 41 of the Local Autonomy Act

[1] Supreme Court Decision 2003Na13 decided Sep. 23, 2003 (Gong2003Ha, 2102)

The head of Seocho-gu (Law Firm Mailing, Attorney Han-ho, Counsel for defendant)

Seocho-gu Council (Attorney Park Dong-dong et al., Counsel for the defendant-appellant)

March 24, 2011

The re-resolution made by the Defendant on December 20, 2010 on the Seocho-gu Seoul Metropolitan Government Ordinance on Inspection and Investigation of Administrative Affairs has no effect on the re-resolution of the Ordinance. The costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Re-resolution of the Ordinance of this case and a summary of its contents

According to the descriptions of Gap evidence 1-1, 2, Gap evidence 2-1 through 3, and Gap evidence 3, the following facts may be acknowledged:

A. On October 15, 2010, the Defendant passed a resolution on partial amendment of the Seocho-gu Seoul Metropolitan Government Ordinance on the Audit and Investigation of Administrative Affairs (hereinafter “instant Ordinance”) and transferred it to the Plaintiff at that time. On November 8, 2010, the Plaintiff demanded reconsideration from the Defendant on the grounds that the instant Ordinance would violate the executive body’s inherent authority by creating a new check device that does not have any statute. However, the Defendant re-resolutioned the instant Ordinance as the original bill on December 20, 2010.

B. According to the Ordinance of this case, with respect to the submission of materials to the pertinent departments through the Secretary General as necessary for legislative activities regarding the audit and investigation of administrative affairs, the purport that if the pertinent public official fails to faithfully perform it, he/she may request the disciplinary action against him/her by a resolution of the Council (hereinafter “Ordinance of this case”).

2. Whether the Ordinance of this case is unlawful

The Local Autonomy Act provides that the highest decision-making body that determines the intention of a local government inside and outside the local council shall have the head of an executing body who expresses the intention of a local government as a representative of a local government and supervises its affairs as an independent agency, and that the council and the head of an organization shall grant independent authority to check and balance with each other, barring special provisions in Acts, it may not establish regulations that infringe on the other party’s own authority beyond the scope of checks by Municipal Ordinance, unless otherwise provided for in Acts and subordinate statutes. The local council has the authority to inspect and investigate the administrative affairs of a local government under Article 41 of the Local Autonomy Act, as well as voting rights on the matters stipulated in Article 39 of the Local Autonomy Act. Thus, it is not permissible to establish a new check system within the scope of authority given by Acts and subordinate statutes to check and examine the administrative affairs of a local government (see, e.g., Supreme Court Decision 2003Do13, Sept. 23, 2003).

However, according to the ordinance of this case, the local council may request a disciplinary action on the grounds of a specific disciplinary reason that a specific public official belonging to the executive body failed to faithfully comply with the member's request for submission of materials, and such request for disciplinary action may act as political and psychological pressure to the executive body and substantially function as a check-up means. This check-up system is a new one that does not have any statute, allowing the local council to actively intervene in the exercise of the right to discipline against employees belonging to the head of the local government, and thus, it is unlawful as it infringes the executive body's inherent authority.

Therefore, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution on the Ordinance of this case is justified.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)