In a case where the head of the Gu requests reconsideration of the Seocho-gu Seoul Metropolitan Government Ordinance on Partial Amendment to the Seocho-gu Seoul Metropolitan Government Ordinance on Urban Planning, which amends the "Gu Council Ordinance" which may be appointed or commissioned as a member of the Urban Planning Committee as the "Gu Council member recommended by the chairperson of the Gu Council", but the Gu Council re-resolutions the case holding that the above Ordinance cannot be deemed as violating Article 112 (3) of the Enforcement Decree of the former National Land Planning and Utilization Act

In a case where the head of the Gu has requested reconsideration of the Seocho-gu Seoul Metropolitan Council Ordinance partially amended by the head of the Seocho-gu Seoul Metropolitan Council to the "three members of the Gu Council recommended by the chairperson of the Seocho-gu Seoul Metropolitan Council" for the reason that the head of the Seocho-gu Seoul Metropolitan Council violated the National Land Planning and Utilization Act, etc., but the Seocho-gu Council passed a resolution again, the case held that Article 4 (4) of the above Ordinance does not violate the right to appoint or commission personnel members of the Seocho-gu Council as members of the National Land Planning and Utilization Act under Article 112 (3) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 24593, Jun. 11, 2013; hereinafter referred to as the "former Enforcement Decree of the National Land Planning and Utilization Act") which provides for "three members of the relevant Si/Gun/Gu Council" who may be appointed or commissioned by the head of the Gu as members of the Urban Planning Committee, and it does not necessarily violate the right to appoint or commission members of the Seocho-gu Council.

Article 114(2) of the National Land Planning and Utilization Act; Articles 112(3) and 114 of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 24593, Jun. 11, 2013);

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Nam River, Attorney Lee Dong-ho, Counsel for defendant)

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

July 25, 2013

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The re-resolution of the Seocho-gu Seoul Metropolitan Government Ordinance on Partial Amendment to the Urban Planning Ordinance on April 25, 2013 by the Defendant is invalid.

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

The following facts can be acknowledged in full view of the purport of the whole pleadings in the statement in Gap evidence Nos. 1 through 6.

A. On March 20, 2013, the Defendant passed a resolution on the proposed bill of claim at the Seocho-gu Seoul Metropolitan Council extraordinary session (the third plenary session). On April 8, 2013, the Plaintiff demanded reconsideration on the ground that Article 4 of the proposed bill of this case violates the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and the Local Autonomy Act, but the Defendant, on April 25, 2013, re-resolutioned the proposed bill of this case as the original bill, thereby becoming final and conclusive.

B. Under Article 114 of the National Land Planning and Utilization Act and Articles 112 and 114 of the Enforcement Decree of the former National Land Planning and Utilization Act (amended by Presidential Decree No. 24593, Jun. 11, 2013; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”), the Ordinance of this case provides for matters concerning the establishment and operation of the Seocho-gu Seoul Metropolitan Government Urban Planning Committee (hereinafter “Urban Planning Committee”) pursuant to Article 114, Article 4(4) of the Seocho-gu Seoul Metropolitan Government Ordinance on Urban Planning shall be appointed or commissioned by the head of the Gu from among the following persons. In such cases, the number of members falling under subparagraph 3 shall be at least 2/3 of the total number of the members of the Committee.

2. Validity of the Ordinance of this case

A. Whether Article 4(4) of the Ordinance of this case violates the National Land Planning Act and subordinate statutes

1) The plaintiff argues that Article 4 (4) 2 of the Seocho-gu Seoul Metropolitan Government Ordinance on Urban Planning is in violation of Article 114 of the National Land Planning and Utilization Act and Articles 112 and 114 of the former Enforcement Decree of the National Land Planning and Utilization Act on the premise that the plaintiff has a duty to appoint or commission three Gu Council members recommended by the chairperson of the Seocho-gu Seoul Metropolitan Council pursuant to Article 4 (4) 2 of the Ordinance on the Municipal Ordinance on the Municipal Ordinance on the Municipal Ordinance on the Municipal Ordinance on the Municipal Ordinance on the Municipal Ordinance of this case, under the premise that the plaintiff has a duty to appoint or commission three Gu Council members recommended by the chairperson of the Seocho-gu Seoul Metropolitan Council pursuant to Article 4 (4) 4 of the Seocho-gu Seoul Metropolitan Council Ordinance on the Municipal Ordinance on the Municipal Ordinance

2) Article 112(3) of the former Enforcement Decree of the National Land Planning Act, based on delegation by Article 114(2) of the National Land Planning Act, provides that the head of the Gu shall appoint or commission members of the relevant Si/Gun/Gu local council, public officials of the relevant Si/Gun/Gu and administrative agencies related to the relevant Si/Gun/Gu plan, and members of the urban planning committee from among those who have knowledge and experience in areas related to urban/Gun planning, such as land use, construction, housing, transportation, environment, disaster prevention

In addition, Article 114(2) of the National Land Planning and Utilization Act and Article 4(4) of the Ordinance of this case stipulating matters concerning the operation of the urban planning committee according to delegation by Article 114 of the Enforcement Decree of the former National Land Planning and Utilization Act shall be interpreted as the language and text, and the head of the Gu may appoint or commission members of the urban planning committee among “public officials of Grade 5 or higher of the Gu, three Gu Council members recommended by the Speaker of the Seocho-gu Seoul Metropolitan Council, and three Gu Council members recommended by the Speaker of the Seocho-gu Seoul Metropolitan Council, Seoul Metropolitan Council, and those with knowledge and experience in the field of urban planning and related fields,

Therefore, Article 4 (4) of the Ordinance of this case provides that Article 4 (4) of the Ordinance of this case provides that the head of the Gu may appoint or commission members of the Urban Planning Committee from among the persons, including them as prescribed by the Enforcement Decree of the National Land Planning Act, except that Article 112 (3) of the Enforcement Decree of the former National Land Planning Act provides that "members of the relevant Si/Gun/Gu local council," which may be appointed or commissioned by the head of the Gu as members of the Urban Planning Committee, shall not be different from Article 4 (4) of the Ordinance of this case and Article 112 (3) of the former Enforcement Decree of the National

3) Therefore, the Plaintiff’s assertion asserting the invalidity of the Ordinance of this case cannot be accepted on a different premise.

B. Whether Article 4 (4) of the Ordinance of this case is unlawful on the ground that Article 4 (4) of the Ordinance of this case actively intervenes in advance

1) The Plaintiff asserts that Article 4(4) of the Ordinance of this case provides that the Seocho-gu Seoul Metropolitan Council Chairperson may actively intervene in the Plaintiff’s right to personnel appointment or commission of members of the Urban Planning Committee as an individual qualification in advance.

2) According to Article 117(1) of the Constitution of the Republic of Korea and Article 22 of the Local Autonomy Act, a local government may enact municipal ordinances concerning its affairs within the scope of statutes. The Local Autonomy Act grants independent authority to the local council as a deliberative organ and the head of the local government as an executive organ. On the other hand, the local council may monitor and control the performance of affairs by the head of the local government through administrative affairs audit, investigation authority, etc., and the head of the local government can maintain mutual checks and balance by allowing the head of the local government to act as a member of the local council in the exercise of voting rights by the local council due to the local council's request for reconsideration of resolution, etc.

3) Article 4(4) of the Ordinance of this case only regulates the Plaintiff’s authority to appoint members of the Urban Planning Committee as “three Gu Council members recommended by the chairman of the Seocho-gu Seoul Metropolitan Council” who can be appointed or recommended as members of the Urban Planning Committee. However, Article 114 of the former National Land Planning Act provides that “qualification and appointment criteria for urban planning committee members” shall be prescribed by the Ordinance. Since it is not necessarily necessary to appoint or commission Gu Council members recommended by the chairman of the Seocho-gu Seoul Metropolitan Council as members of the Urban Planning Committee, Article 4(4) of the Ordinance of this case does not infringe on the Plaintiff’s unique right to appoint or commission as members of the Urban Planning Committee.

In addition, insofar as it is deemed unnecessary for the Plaintiff to appoint or commission Gu members recommended by the chairman of the Seocho-gu Seoul Metropolitan Council as members of the Urban Planning Committee, Article 4(4) of the Ordinance of this case does not mean that Article 4(4) of the Seocho-gu Seoul Metropolitan Council Ordinance of this case allows the chairman of the Seocho-gu Seoul Metropolitan Council to participate in the Plaintiff’s personal right to personnel, thereby

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)