In a case where the head of a local government, in order to install waste disposal facilities in three villages located within the jurisdiction of the local government, the head of the local government organized the Resident Support Council by commissioning the representative of residents elected by the above community general meeting as nine candidates, two environmental experts, and four local council members, and the above community residents filed an application for provisional disposition of suspending execution of duties by asserting embezzlement, breach of trust, etc. of the Resident Support Fund, etc. against the chairperson Byung of the Resident Support Council separately organized at the resident general meeting against the chairperson Byung of the Resident Support Council, the case holding that the application for provisional disposition is unlawful since the applicant Eul, etc

In a case where the head of a local government, in order to install waste disposal facilities in three villages located within the jurisdiction of the local government, the resident support council was organized by commissioning the representative of residents, two environmental experts, and four local council members elected at the above community residents' general meeting as members, and where the above community residents, such as standing representatives or joint representatives of the village development council organized separately at the residents' general meeting, filed an application for a provisional disposition suspending execution of duties by asserting embezzlement, breach of trust, etc. of resident support fund, etc. against the chairperson of the resident support council, the case holding that even if Eul, etc. can recommend Byung to dismiss Byung, it is not qualified as the applicant for provisional disposition, and even if Eul, etc. can not file a lawsuit claiming the revocation of the request to dismiss Byung against the head of the local government, although Eul, etc. filed a lawsuit claiming the revocation of the request to dismiss the member, it is not immediately dismissed due to the validity of the judgment itself, and thus, the

Article 30 of the Civil Execution Act, Article 17-2 (1) and (3) of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, Article 18 (1) [Attached Table 1] of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities, Assistance

Creditor 1 and three others (Attorneys Kim Jong-ho et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Plaintiff (Attorney Kim Jong-soo, Counsel for defendant-appellant)

1. The motion of this case shall be dismissed.

2. The costs of lawsuit shall be borne by the obligees.

The debtor shall not perform his duties as the chairperson and a member of the Jeonju District Court 2017Guhap1299 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

1. Basic facts

According to the overall purport of records and examinations, the following facts are recognized:

A. Jeonju-si decided to create the ○○○○○○○○○○○○○○○○ in Jeonju-si, Jeonju-si, △△△△△△△, △△△△△ Village (hereinafter referred to as “△△△△ Village”). The residents of the △△△△△△△△△○ City, which held a general meeting of residents on January 24, 2016, elected nine candidates for the representative of residents.

B. On March 1, 2016, the Jeonju Mayor organized the Resident Support Consultative Body by appointing nine resident representatives elected as above, two environmental experts recommended by the representative of residents, and four members of Jeonju City as members of the Resident Support Consultative Body pursuant to Article 9 (Composition and Operation of the Resident Support Consultative Body) of the Ordinance on Promotion of Installation, Operation, Assistance, etc. of Waste Disposal Facilities in Jeonju-si, and Assistance, etc. to The Resident Support Consultative Body. On March 2, 2016, the Resident Support Consultative Body established the Articles of the Resident Support Consultative Body on March 2, 2016, elected

2. The gist of obligees' claims

On January 24, 2016, 2016, residents of △△△△ City selected the representative of residents at a residents’ general meeting that held on January 24, 2016, while organizing “○○○○○○○○○, △△△△△ Village Development Council (hereinafter referred to as “△△△△△ Development Council”). The creditors 1 are full-time representatives of the △△△△ Development Council, and creditors 2, 3, and 4 are joint representatives of the △△△△△ Development Council

The obligees conduct their duties as the members of the Resident Support Consultative Body and the chairperson of the Residents Support Consultative Body; ① embezzled the Resident Support Fund, etc. received from the Jeonju City for personal purposes pursuant to the Act on Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to their Environs; ② by amending the articles of incorporation of the Resident Support Consultative Body without lawful procedures, thereby causing property damage to the residents of △△△ residents; ③ an obligor or a third party to gain property benefits; ③ even though the budget has been allocated for the residents’ preferential field study expenses and the Resident Support Society, etc., the creditors did not properly execute such activities; ③ even though the budget has been allocated for the Resident Support Consultative Body, the members of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which recommended only five persons to be recommended to appropriately conduct the sexual survey and surveillance of waste; ② The debtors are not entitled to receive the above subsidies by the former Consultative Body on the grounds that they have no authority to arbitrarily dismiss the members of the Resident Support Consultative Body, and have no authority to grant them.

3. Ex officio determination of the obligees' eligibility as applicants

1) Relevant legal principles

The provisional disposition suspending execution of duties is a person who has standing to sue in the merits lawsuit, and thus, a lawsuit claiming dismissal against an executive officer on the ground of an unlawful act constitutes a formation lawsuit aimed at changing or establishing existing legal relations (see Supreme Court Decisions 2000Da45020, Jan. 16, 2001; 97Meu2269, Oct. 27, 1997, etc.). Thus, a lawsuit claiming dismissal against an executive officer on the ground of an unlawful act may be brought only where there is a express provision in law (see, e.g., Supreme Court Decisions

The Support Consultative Body shall be established in consultation with the competent Special Self-Governing City Mayor, Special Self-Governing Province Governor, Si/Gun/Gu, Special Self-Governing City Mayor, Special Self-Governing City, Special Self-Governing Province Governor, Special Self-Governing Province Governor, Si/Gun/Gu, Si/Gun/Gu, and Si/Gun/Gu Council among the experts recommended by the representative of residents and the representative of residents at the location of the relevant waste disposal facilities, and the Act on Promotion of Installation

A provisional disposition to determine a temporary position is an urgent and provisional disposition permissible only when there is any other necessary reason to avoid significant damage or prevent an imminent danger that may arise between the parties until the lawsuit on the merits is finalized. In particular, in the case of a provisional disposition suspending the performance of duties, if the application for such provisional disposition is accepted, it would result in a significant change, such as deprivation of the status of the debtor of the relevant provisional disposition before the judgment on the merits is rendered, and even if the debtor participates in the judgment on the merits in the future, it would be difficult for the debtor to completely restore the status even if he/she won in the judgment on the merits in the future, so the necessity of preservation and preservation

2) Determination

In light of the above legal principles, the case is examined, and the dismissal of a member is, in principle, belonging to the authority of the commissioned member. Thus, the appointment and dismissal of a member of the Resident Support Council of this case is the authority of the Jeonju-si, who is the person with authority to organize the Resident Support Council

However, according to the obligees' claims, the obligor was duly commissioned as a member of the Residents Support Consultative Body and the chairman of the Residents Support Consultative Body in this case, and there were subsequent circumstances to dismiss the obligor, and there is no evidence to acknowledge that the obligees have legal grounds to file a lawsuit claiming the dismissal of the obligor against the previous main market. Thus, the obligees cannot file a lawsuit claiming dismissal against the obligor even if they could recommend dismissal at the previous main market.

In addition, even though the obligees filed a lawsuit against the former ○○○○○○○ Residents Support Consultative Body against the former ○○○○○○○○○○○○○○○ Residents Support Consultative Body, there is no evidence to acknowledge that the former ○○ City actively rejected the obligees’ request for dismissal, and even if the request for revocation of the revocation of the request for dismissal is accepted in the above lawsuit, it is not immediately dismissed by the obligor as the validity of the judgment itself, and therefore, even if the provisional disposition in this case is a appearance, it is difficult to view that it is to preserve the execution

In addition, considering that the former District Public Prosecutor's Office rendered a disposition against the creditor on August 14, 2017 with respect to a case in which the creditor filed a complaint against the debtor through occupational embezzlement, the petition in this case is unlawful without having to further examine on the merits, since the creditor cannot be deemed to have the applicant's eligibility and the benefit of the application in the application for provisional disposition in this case.

4. Conclusion

Therefore, the provisional disposition application of this case is unlawful, so it is decided as per Disposition by the assent of all participating Justices.

Judges Gangseo-gu (Presiding Judge) Kim Jong-young