[1] Whether a municipal ordinance explicitly limits the right to compile a budget bill or the right to apply for a budget appropriation of a national or municipal subsidy by the head of an organization (negative)

[2] The validity of the Gu Ordinance stipulating that the procedures for application of the State-Si subsidy to the head of the Gu shall be subject to prior resolution or ex post facto approval by the Gu Council

[1] In light of the purpose of separation and distribution of authority between the deliberative body under the Local Autonomy Act and the executive body, the local council is authorized to deliberate and determine the local government’s budget, and thus it is deemed inappropriate for the State/Si/Gun subsidy project that entails the financial burden of the local government, it may ex post facto monitor and control the project through deliberation on the relevant budget bill. However, unless the law grants the head of the local government the authority to execute affairs such as compilation of the budget bill or application for appropriation of the State/Si subsidy, but does not stipulate that the exercise of authority may be subject to prior resolution of the local council or ex post facto approval for the exercise of such authority, or unless the ordinances stipulate that ordinances may be enacted, the ordinances, which are subordinate laws, may not essentially restrict the right of the head of the organization to compile the budget bill or the right to apply for the appropriation of the State/Si

[2] Since the State or Si subsidies granted to the Gu, a local government, are appropriated in the budget of the State or a Metropolitan City, an application for the appropriation of the State or Si subsidies serves as one of the inherent authority of the head of the Gu, who is the executive agency. According to the provisions of the Local Autonomy Act, the Local Finance Act, the Act on the Budgeting and Management of Subsidies and Metropolitan City Ordinances, the Act on the Budgeting and Management of Subsidies and Metropolitan City Ordinances, the application for the appropriation of the State or Si subsidies only stipulate the requirements and procedures for application, submission of materials and the duty to explain, the duty to report and the duty of preferential appropriation of the local expenses for the State or Si subsidies, and there is no provision that may limit the right to compile the budget of the head of the Gu or the right to apply for the appropriation of the State or Si subsidies in the budget with the head of the Gu, and there is no other special provision that allows the executive agency to obtain prior approval or ex post facto approval of the Gu Council in relation to the application for the appropriation of the State or Si subsidies. Therefore, Article 4(1) and (2)5) of the Ordinance of this case is subject to prior approval of the Metropolitan Council.

[1] Articles 35(1)2, 94, 114, and 118(1) of the Local Autonomy Act; Article 20 of the Local Finance Act; Article 4 of the Act on the Budgeting and Management of Subsidies / [2] Articles 35(1)2, 94, 114, and 118(1) of the Local Autonomy Act; Article 20 of the Local Finance Act; Article 4 of the Act on the Budgeting and Management of Subsidies

Head of the Seosung-gu Daejeon Metropolitan City (Attorney Park Jong-han, Counsel for the defendant-appellant)

Jung-gu Seoul Metropolitan Jung-gu Council (Attorney Shin Jong-chul, Counsel for the defendant-appellant)

April 12, 1996

The re-resolution of the Ordinance on the Procedure for Application for Subsidies for State or Si Subsidies in Daejeon Metropolitan City on November 23, 1995 by the defendant shall not be effective. The costs of the lawsuit shall be borne by the defendant.

1. The process of the re-resolution of this case

The following facts may be acknowledged according to the descriptions of Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3, Gap evidence 4, Eul evidence 1-1, and Eul evidence 1-2, which do not conflict with the formation.

A. On October 24, 1995, at the 40th extraordinary session of the Daejeon Metropolitan City, the Defendant passed a resolution on the draft of the Ordinance on the Procedure for Application for Subsidies for Si Subsidies (hereinafter referred to as the "Ordinance of this case") and transferred it to the Plaintiff on the 25th of the same month. On November 10 of the same year, the Plaintiff demanded reconsideration pursuant to Article 98(1) of the Local Autonomy Act on the ground that the implementation of subsidized projects or the procedure for application for subsidies among the above draft ordinances does not fall under the category of the organization’s execution as it does not fall under the category of the organization’s execution. However, the Defendant re-resolutiond the same contents as the original result at the 2nd regular session of the 41st extraordinary session of the same month at the

B. The Ordinance of this case, which is a re-resolution, shall, when the head of the Gu applies for the State or Daejeon Metropolitan City with the State or Daejeon Metropolitan City (Article 2), undergo the procedures prescribed by the above Ordinance according to the nature and amount of the subsidized project (Article 3). Before applying for the State or Daejeon Metropolitan City Subsidies, the head of the Gu shall examine and prepare the project plan, including the necessity, feasibility, legality, effectiveness, etc. of the project (Article 3), new projects with the total project cost of at least KRW 200 million, civil projects with the total project cost of at least KRW 100,00,000,000,000,000,000, and shall submit an application after prior resolution by the Council, and shall notify the Council of the application (Article 4(1) and (2)), and if the head of the Gu takes a pre-determination disposition due to any cause not subject to prior resolution by the Council, he/she shall, without delay, obtain approval from the Council (Article 5), and the head of the Gu shall immediately notify the result thereof (Article 6).

2. Whether the Ordinance of this case violates the law

A. (1) In light of the purpose of separation and distribution of authority between a deliberative body and an executive body under the Local Autonomy Act, a local council may, if it deems it inappropriate to conduct a national or non-governmental subsidy project that entails a burden because it has the authority to deliberate and determine the budget of a local government, conduct ex post facto monitoring and control through deliberation on the relevant budget bill, but it shall be deemed that the head of a local government (hereinafter referred to as the “head of an organization”) is granted the authority to execute affairs such as compilation of a budget bill or application for appropriation of a national or non-governmental subsidy, but shall require the head of a local government (hereinafter referred to as the “head of an organization”) to obtain prior resolution or approval from the council on the exercise of such authority, and unless it is prescribed that a municipal ordinance may enact such a municipal ordinance, it may not be deemed that the subordinate municipal ordinance, which is a subordinate municipal ordinance, may not essentially restrict the right to compile a budget

(2) Meanwhile, according to the provisions of Articles 15 and 9 of the Local Autonomy Act, matters that a local government may enact municipal ordinances are limited to autonomous affairs, which are the inherent affairs of a local government, and the so-called organization delegation delegated to a local government under individual Acts and subordinate statutes, and matters concerning the delegated affairs of an agency delegated by the head of a local government, which are the State affairs, are outside the scope of the enactment of municipal ordinances (see, e.g., Supreme Court Decision 92Do31, Jul. 28

B. Therefore, first of all, as to whether Article 4(1), (2), and Article 5 of the Ordinance of this case is in conformity with the statute;

(1) Article 94 of the Local Autonomy Act provides that the head of an organization shall manage the affairs of the relevant local government and the affairs delegated by the relevant head of the organization under the Acts and subordinate statutes; Articles 35(1)2 and 118(1) provide that the right to compile a budget bill shall be granted to the head of the organization; and the local council shall deliberate and confirm the budget; and Article 114 provides that the local government shall endeavor to realize the State policies; and the State subsidy rate and the local expense rate for the expenses required for the implementation of the said policies shall be prescribed by Acts and subordinate statutes; and

The Local Finance Act provides that when the State or a City/Do deems it necessary for policies, or when it is deemed particularly necessary for the financial situation of a local government or a Si/Gun/autonomous Gu, a subsidy may be granted to a local government within budgetary limits (Article 20(1) and (2)); when the State grants a national subsidy, a local government shall not give an instruction to the financial burden to the local government, except as otherwise provided for in statutes or municipal ordinances or in extenuating circumstances under national policies; in the case of a national subsidy owing to the financial burden of a local government, the head of a central administrative agency and the Minister of Home Affairs shall notify and consult with the Minister of Finance and Economy (Articles 20(3) and 23); and when the head of a central administrative agency applies for the appropriation of a subsidy in the budget, the head of the Gu shall report

Except as otherwise provided for in other Acts, the budget compilation and management of subsidies shall be governed by the provisions of this Act (Article 3(1)), and a person who intends to operate a subsidy program shall submit an application and accompanying documents for the appropriation of subsidies to the head of a central government agency each year after submitting an application and accompanying documents stating the purpose and details of the subsidy program, expenses incurred in the subsidy program, and other necessary matters. If a person who intends to operate a subsidy program is the head of a Si/Gun, the Do Governor may comprehensively apply for subsidies to the head of the relevant Si/Gun (Article 4(1), (2), and (3)), and the Do Governor may also apply for subsidies to be appropriated in the budget if it is inevitable to implement national policies even for a subsidy program without an application for appropriation of the budget (Article 5); the head of the relevant central government agency may request subsidies to be appropriated in the budget (Article 6(1)); the head of the relevant local government may also request subsidies to be appropriated in the budget to be appropriated in the budget (Article 18(2) and the head of the competent central government agency shall also request the budget appropriation of subsidies to be appropriated.

(2) Since the State or Si subsidies granted to the Gu (autonomous Gu) which is a local government, are appropriated in the budget of the State or Metropolitan City, an application for appropriation of the State or Si subsidies is dealt with with the contents of the right to compile the budget, which is the inherent authority of the head of the Gu who is the executive agency. According to the relevant provisions of each of the above laws and regulations, the application for appropriation of the State or Si subsidies, in the budget appropriation of the State or Si subsidies, stipulates requirements and procedures for application between the head of the Gu and the Metropolitan City Mayor, the head of the central government agency, or the Minister of Finance and Economy, submission of data and the duty to explain, the duty to report, and the duty of preferential appropriation of the local expenses for the State or Si subsidies, and there is no provision that can check or limit the right to compile the budget of the head of the Gu or the right to apply for the appropriation of the State or Si subsidies in the budget appropriation of the State or Si subsidies, there is no special provision that is delegated to the Gu Ordinance to obtain prior

Therefore, Articles 4(1), 4(2), and 5 of the Ordinance impose an obligation without law, such as requiring the Gu Council to obtain prior approval or ex post facto approval, upon the head of the Gu who is an executive agency in regard to the compilation of the budget bill of this case, and at the same time, restricting the authority of the executive agency by allowing the Gu Council to participate in the performance of the above affairs in advance and in substance, and thus, these provisions violate the relevant provisions of each Act and the Ordinance of the Presidential Assembly in time of war.

(3) On the other hand, as a system that provides subsidies to fully or partially subsidize expenses or to provide financial assistance by determining the scope of use of national affairs, national policies, etc., the government subsidy is a case of delegated affairs of the so-called agency, which is the State affairs of the local government, among the affairs of the local government. Since the Ordinance of this case stipulates that a project eligible for subsidies is a delegated affairs of an organization or a delegated affairs of an agency, it shall be uniformly subject to prior resolution by the Gu Council or approval after the fact that the project eligible for subsidies is an agency delegated affairs, it shall be deemed that it goes beyond the limit prescribed by the Ordinance, and it shall not be interpreted as an organization delegated affairs uniformly on the ground that the project eligible for subsidies is an agency entrusted affairs.

3. Therefore, since the Ordinance of this case violates the provisions of Articles 4(1) and (2) and 5, the remaining provisions are not effective as a whole without any need to examine whether it violates the Acts and subordinate statutes. Accordingly, the plaintiff's claim of this case seeking confirmation of invalidity of the Ordinance of this case is justified, and it is so decided as per Disposition by the assent of all participating Justices with the assent of all participating Justices, who is the losing party.

Justices Cho Chang-tae (Presiding Justice)