[1] The meaning of "within the scope of a statute" under Article 22 of the Local Autonomy Act, and the validity of an ordinance enacted by a local government in violation of a statute (negative)

[2] The case holding that the amendment of the Municipal Ordinance which allows an inspector appointed by the local council to present his opinion on corrective measures such as collection, redemption, compensation, and disciplinary action against the public official in charge of the settlement inspection to the opinion of the settlement inspection was unlawful

[1] The main sentence of Article 22 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances concerning their affairs within the scope of statutes." Here, "within the scope of statutes" refers to "within the scope of statutes," and "within the scope of statutes," and where municipal ordinances enacted by local governments violate statutes, they shall not be effective

[2] The case holding that the amendment of the Municipal Ordinance which provides that a member in charge of settlement inspection appointed by the local council may, if necessary, present his opinion on corrective measures such as collection, recovery, compensation, and disciplinary action against the public official in charge of settlement inspection, and that the City Mayor may inform the Council of the result of corrective measures or corrective measures plan for the opinion, is unlawful since the local council, in fact, requests the head of the organization to take disciplinary action against the public official in charge of collection, etc. directly or indirectly, and the local council constitutes an act of creating a new check system against the executive agency beyond the scope of authority

[1] Article 22 of the Local Autonomy Act / [2] Article 22 of the Local Autonomy Act, Article 35 (see current Article 39), Article 36 (see current Article 41), Article 96 (see current Article 105), Article 125 (1) (see current Article 134 (1)), Article 19 (see current Article 51), Article 47 (3) (see current Article 84 (3)) of the former Enforcement Decree of the Local Autonomy Act (wholly amended by Presidential Decree No. 20306, Oct. 4, 2007)

[1] Supreme Court Decision 2002Da23 decided Apr. 26, 2002 (Gong2002Sang, 1272) Supreme Court Decision 2003Da13 decided Sep. 23, 2003 (Gong2003Ha, 2101)

Plaintiff Market (Law Firm LLC, Attorneys Lee Young-young, Counsel for the plaintiff-appellant)

Defendant-Si Association (Attorney Lee Byung-hun, Counsel for defendant-appellee)

March 12, 2009

A re-resolution on the draft of the amended Ordinance among the Ordinance on the Appointment and Operation of ○○ City Accounting Inspection Commissioner, which was made by the Defendant on September 17, 2007, shall not be effective. The costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. Confirmation and details of the draft amended Municipal Ordinance;

The following facts may be acknowledged in full view of the purport of the entire pleadings in each statement of Gap evidence Nos. 1, 2, and 3-1, 2-2.

A. On July 20, 2007, the Defendant passed a resolution on the amendment of the Municipal Ordinance (hereinafter “Revision Ordinance”) as stated in the order and transferred it to the Plaintiff on the 23th day of the same month. On August 10, 2007, the Plaintiff demanded a re-resolution to the Defendant on the ground that Article 9(1) and (3) of the Amendment Ordinance violates the law and regulations. However, on September 17, 2007, the Defendant re-resolutioned the amendment Ordinance as the original bill and thereby became final and conclusive.

B. Article 9(1) and (3) of the amended Ordinance, in which the Plaintiff had requested reconsideration (hereinafter “the instant Ordinance”). If necessary, after the closing of the inspection of settlement, a member in charge of settlement inspection may present his/her opinion on corrective measures, such as additional collection, redemption, compensation, and disciplinary action against the public official in charge of settlement inspection, etc. (Article 1). The Mayor shall present his/her opinion to the Council along with the statement of accounts and the statement of accounts inspection. However, if the opinion of corrective measures is expressed in the statement of accounts inspection, he/she shall inform the Council of the result of corrective measures or the plan of corrective measures, and if it is impossible, he/she shall inform the Council of the reasons therefor (Article 3).

2. Whether the provisions of the Municipal Ordinance of this case violate statutes

A. The main sentence of Article 22 of the Local Autonomy Act provides that “Local governments may enact municipal ordinances with respect to their affairs within the scope of statutes.” Here, “within the scope of statutes” refers to “within the scope of statutes,” and “within the scope of statutes,” and where municipal ordinances enacted by local governments violate statutes, they shall not be effective

Meanwhile, Article 125(1) of the former Local Autonomy Act (wholly amended by Act No. 8423, May 11, 2007; hereinafter “former Local Autonomy Act”) provides that the head of the local government shall attach an inspector’s opinion on the settlement of accounts and documentary evidence prepared before approval to the inspector’s opinion on the settlement of accounts and documentary evidence prepared by the local council prior to approval, and Article 47(3) of the former Enforcement Decree of the Local Autonomy Act (wholly amended by Presidential Decree No. 20306, Oct. 4, 2007; hereinafter “former Enforcement Decree”) upon delegation under paragraph (3) of the same Article shall submit the inspector’s opinion to the head of the local government within 10 days after the settlement of accounts is completed, and if deemed necessary for deliberation of the settlement of accounts, the inspector’s opinion may be presented to the head of the local government, and therefore, the Ordinance of this case prescribes matters contained in the settlement of accounts inspection as stipulated in these provisions, and if the content thereof is in violation of the Act and subordinate statutes.

B. We examine whether the proposed ordinances of this case violate the statutes.

The Local Autonomy Act provides that the highest decision-making organ that determines the intention of a local government inside and outside the local council shall have the head of the local government as the representative of the local government, and the executive organ that supervises the affairs of the local government as the representative of the local government shall be independent agencies, and the council and the head of the organization shall be given an independent authority and shall maintain balance with each other. Therefore, unless otherwise provided for in Acts, it may not enact regulations that infringe the other party's own authority beyond

In addition to the enactment and amendment of municipal ordinances, deliberation and determination of budgets, approval of settlement of accounts, and other voting rights on matters stipulated in Article 35 of the former Local Autonomy Act, local councils shall have the authority to inspect and investigate administrative affairs of local governments pursuant to Article 36 of the former Local Autonomy Act. The local councils may check and check executive agencies within the scope of authority given by Acts and subordinate statutes, and the establishment of a new check and check system without any provision in Acts and subordinate statutes shall not infringe the executive agencies' inherent authority and may not be permitted. In relation to the authority to inspect and investigate administrative affairs of local governments before the Local Autonomy Act is prescribed as one of the primary check and check systems with which the head of the local government is a local government. However, it is already determined by municipal ordinances so that the local council may request disciplinary action against the relevant local government or the relevant institution in addition to the request for correction thereof, and for disciplinary action against the related persons, it shall be see Article 36, Article 96 of the former Local Autonomy Act and Article 19 of the former Enforcement Decree, Article 69 of the Local Public Officials Act, and Article 20 of the Act.

However, the provisions of the Ordinance of this case, as seen earlier, may, if necessary as a result of the inspection on the settlement of accounts by a member in charge of settlement inspection appointed by the local council, include the opinion on corrective measures, such as collection, redemption, compensation, and disciplinary action against the public official in charge of settlement inspection, and the Mayor shall notify the Council of the result of corrective measures or the plan for corrective measures. In such a case, the local council shall decide whether to approve the settlement of accounts in consideration of the contents of the member in charge of settlement inspection’s opinion on the settlement of accounts and the market result report on the corrective measures. Therefore, it is not much different from the fact that the local council requires the head of the organization to

Therefore, it is not necessary for the local council to consider the opinion on corrective measures such as additional collection, redemption, compensation, or disciplinary action against the public official in charge of settlement inspection conducted as data to determine whether to approve the settlement of accounts, rather than the primary check device of the local council with regard to the head of the local government. Furthermore, it is not possible for the local council to consider the opinion on corrective measures such as the preparation of a written opinion of settlement inspection conducted by an inspector in charge of settlement inspection, as it goes beyond the scope of authority given under the statutes and regulations, and thus it does not violate the statutes. As long as part of the draft of the amended municipal ordinance is illegal, the re-resolution on the draft of the amended municipal ordinance shall be denied in its entirety.

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 Kim Ji-hyung (Presiding Justice)