The case holding that Article 11 of the Incheon Metropolitan City Ordinance on the Operation of the Council added the resolution of the Council to the "Partial Amendment of the Ordinance on the Operation of the Incheon Metropolitan City Council" is illegal as it goes beyond the limit of the legislative power of the Municipal Ordinance and goes beyond the scope of the checks and goes against the superior laws and regulations, and is unlawful.

Articles 3, 4, 7, 9, 10, 12, 14, and 29 of the Act on Designation and Management of Free Economic Zones; Article 40 of the Local Public Enterprises Act; Article 41(1) of the Enforcement Decree of the Local Public Enterprises Act

Incheon Metropolitan City Mayor (Law Firm Shin, Attorneys Choi Young-sik, Counsel for the plaintiff-appellant)

The Incheon Metropolitan Council (Attorney Park Jae-won, Counsel for the plaintiff-appellant)

October 29, 2009

The re-resolution of the Ordinance on the Partial Revision of the Incheon Metropolitan City Ordinance on the Operation of the Council, which was made by the defendant on November 1, 2007, shall not be effective. Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Re-resolution of the Municipal Ordinance;

The following facts can be acknowledged in light of the whole purport of the pleadings in the statements of Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3-5, and Eul evidence 3-2.

A. The Defendant passed a resolution on September 18, 2007 and transferred the Ordinance to the Plaintiff. The Plaintiff demanded re-resolution on the ground that some of the contents of the Ordinance were in violation of the statute, but the Defendant, on November 1, 2007, re-resolutioned and finalized the Ordinance as the original bill.

B. Article 11 was newly established to add the resolution of the Council to the Ordinance of this case.

2. Whether provisions concerning dispute over municipal ordinances violate Acts and subordinate statutes;

(a) Subparagraph 1 of Article 11 of the Ordinance;

(1) Article 11 Subparag. 1 of the Ordinance provides that “The matters concerning the agreement, agency, entrustment, etc. of development projects with a size of at least 150,00 square meters including matters concerning the Si’s obligations, rights, etc. in relation to the implementation of development projects, such as free economic zones, or with a total development cost of at least 30 billion won, shall be determined by the Council

(2) Although the language and text of this Article include “development projects including free economic zone development projects,” “matters concerning Si’s obligations, rights, etc.,” and “matters concerning development projects agreement, vicarious execution, entrustment, etc.,” the remainder of the language and text can be identified by the court’s supplementary interpretation, and thus, it cannot be deemed null and void as it is unclear.

(3) However, according to the provisions of Articles 3, 4, 7, 9, 10, 12, 14, and 29 of the Act on Designation and Management of Free Economic Zones (hereinafter “Free Economic Zones Act”), the authority of a Mayor/Do Governor to confirm and modify a development plan of a free economic zone, to designate and cancel a free economic zone, to approve an implementation plan prepared by a development project operator, to approve a completion inspection, to notify a development project operator of a type of business to be withdrawn, and to suspend business, etc. is within the jurisdiction of the Minister.

In light of the contents and intent of these provisions, each development project implemented within the free economic zone shall be deemed national affairs, and the affairs related thereto shall be deemed delegated affairs of the Mayor/Do Governor in the status of the national administrative agency.

However, Article 11 Subparag. 1 of the Ordinance restricts “development projects with an area of at least 150,000 square meters or total development project cost of at least 30 billion won, including matters concerning Si’s obligations, rights, etc.” However, even though matters concerning the agreement, vicarious execution, entrustment, etc. related to the implementation of development projects of free economic zones may constitute State affairs, such matters shall be determined by

Therefore, Article 11 subparag. 1 of the Ordinance does not stipulate that the affairs of the State, which are matters concerning the agreement, etc. on the implementation of development projects of free economic zones, shall be resolved by the local council, and it does not delegate that the legislation can be prescribed by ordinances. Therefore, it is unlawful by deviating from the limit of the legislative authority of the Ordinance (it may constitute affairs of local governments related to the implementation of development projects other than free economic zones, according to the laws and regulations on the basis of the development projects. However, whether the provisions of the Ordinance violate each applicable laws and regulations can be individually and specifically examined, and as seen earlier, it does not go beyond the limit of the legislative authority of this Article).

(b) Subparagraph 2 of Article 11;

Article 11(2) of the Ordinance of this case provides that "the sale of land for profit-making business implemented by the Local Public Enterprises Act, etc. shall be subject to resolution by the Council, and matters concerning the transfer of ownership, such as sale, exchange, etc. of land at least ten billion won sold by free contract at a price below appraisal price,"

The Local Public Enterprises Act shall obtain a resolution of the local council with regard to the acquisition and disposal of important assets (land the value of which is at least 50 million won or less than 10,000 square meters) of a local government-directly operated enterprise by the budget, but if a resolution of the local council with regard to the budget is obtained, it shall be deemed that there has been a resolution of the local council on the acquisition and disposal of important assets under the Local Autonomy Act or the Local Finance Act (current public property and Commodity Management Act; hereinafter “Public Property Act”).

This provision of the Ordinance is limited to the case where a transfer of ownership is made at a price below 10 billion won by a negotiated contract at a price below the appraisal price, but this provision is established to ensure that a local government-directly operated enterprise can flexibly respond to changes in the business environment. The purport of Article 40 of the Local Public Enterprises Act, the case where a private contract and appraisal price below the appraisal price can be sold at a price below the free contract and appraisal price under the Public Property Act and Incheon Metropolitan City Ordinance, and in the case of Incheon Metropolitan City, there are no special circumstances that should be regulated separately from other local governments. In concluding a contract for sale, etc., it can be deemed that a prior resolution by the Council is violated the market authority beyond the scope of check by actively participating in the conclusion of the contract of the market, which is the executive agency, to obtain prior resolution

In addition, Article 39 (1) 8 of the Local Autonomy Act provides that the local council's resolution on the acquisition and disposal of important assets of a local government-directly operated enterprise shall be made with respect to the imposition of obligations other than the budget or the waiver of rights except as otherwise provided for in the statutes and ordinances. As seen earlier, the local government-directly operated enterprise has already provided for in the local government-directly operated enterprise laws

Therefore, Article 11 (2) of the Ordinance violates Article 40 of the Local Public Enterprises Act and Article 41 (1) of the same Act and infringes on the market's enforcement authority beyond the scope of checks. Therefore, it is illegal.

3. Conclusion

As seen above, since Article 11 of the Ordinance of this case violates the law, the re-resolution shall be denied its validity. Therefore, the plaintiff's claim of this case is justified, and the costs of lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)