[1] Whether the disposition subject to revocation or suspension of an order or disposition related to autonomous affairs under Article 169(1) of the Local Autonomy Act is limited to an administrative disposition subject to appeal litigation (negative)

[2] Whether employing paid assistants to local council members is a legislative matter to be stipulated by the National Assembly Act (affirmative)

[3] In a case where the chairman of the personnel committee for local governments appointed 40 fixed-time public officials on a fixed-term basis as "policy support personnel" and assigned them to the secretariat of the local council, and the Minister of the Interior issued a corrective order to cancel the employment notice to the head of the local government because the above employment notice was in violation of the statutes and the head of the local government, but ex officio cancelled the employment notice to the head of the local government, the case holding that the appointment notice for the above public officials is unlawful, and the appointment notice for the above public officials is unlawful on the grounds that there are no legal grounds for the appointment of the public officials to the National Assembly, and that the ex officio cancellation disposition is legitimate

[1] Unlike the purpose of an administrative litigation under the Administrative Litigation Act, the purpose of which is to relieve citizens’ rights and interests by excluding the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency as an object of administrative action, and other similar administrative action, and thereby excluding the state of illegality, Article 169(1) of the Local Autonomy Act is to supervise autonomous administrative affairs of a local government within the scope of statutes and public interest. Thus, there is no reason to limit the application of an administrative

[2] The appointment of paid assistant personnel for local council members is a legislative matter that shall be stipulated by the law of the National Assembly as serious changes to the current legal system concerning the status, status, and treatment of local council members.

[3] The case holding that in case where the Minister of Government Administration and Home Affairs ex officio revokes the employment announcement to ex officio to revoke the employment announcement to the head of the local government, although the head of the local government issued a corrective order to revoke the employment announcement to the head of the local government after appointing 40 full-time public officials on a fixed-time basis as "policy support personnel" and assigning them to the secretariat of the local council, the appointment of the above public officials falls under the legislative matters to be stipulated by the National Assembly as laws, since the appointment of the above public officials falls under the legislative matters, not the matters to be determined by the individual local council, on the grounds that there are no legal grounds that the above public officials can be placed in the local council under the Local Autonomy Act and other Acts and subordinate statutes, and the appointment announcement to the above public officials is unlawful, and the ex officio revocation disposition is legitimate.

[1] Article 169(1) of the Local Autonomy Act / [2] Article 40 of the Constitution of the Republic of Korea; Article 33 of the Local Autonomy Act / [3] Articles 56(1), 59, 90, and 112 of the Local Autonomy Act; Article 21-3 of the Decree on Appointment of Local Public Officials; Article 15(2) [Attachment Table 5] of the Regulations on Administrative Organizations and Standards for Fixed Number of Personnel of Local Governments

[2] Supreme Court Decision 2011Da49 Decided May 24, 2012 (Gong2013Sang, 353) Decided January 16, 2013 (Gong2013Sang, 353)

The Mayor of Seoul Special Metropolitan City (Law Firm after Law Firm, Attorney Park Jong-seok, Counsel for defendant)

The Secretary General of the Seoul Special Metropolitan City Council (Law Firm Hyeong et al., Counsel for the defendant-appellant)

The Minister of Government Administration and Home Affairs (Law Firm Barun, Attorneys Kim Hong-do et al., Counsel for the defendant-appellant)

February 9, 2017

The plaintiff's claim is dismissed. The part arising from the participation is assessed against the plaintiff's intervenor, and the remainder is assessed against the plaintiff.

The defendant's ex officio revocation disposition against the plaintiff on April 21, 2016 shall be revoked.

1. Reasons, etc. for the public notice of employment and ex officio revocation disposition

According to the overall purport of Gap evidence 1 through 5, Gap evidence 2-1, and 2-2, the following facts may be acknowledged:

A. On April 14, 2016, the Chairperson of the First Personnel Committee of Seoul Special Metropolitan City publicly announced 40 public officials employed on a fixed-term basis (hereinafter “instant public officials”) in a fixed-term position in Seoul Special Metropolitan City (hereinafter “instant public officials”).

According to the employment announcement of this case, the public officials of this case are appointed as "policy support personnel" and belong to the secretariat of the Seoul Metropolitan Council, and ① finding, investigating, analyzing, and policy support for major issues, ② supporting the preparation of and legislative process for the enactment and amendment of municipal ordinances, ③ supporting the public hearings and discussions on bills of municipal ordinances, and supporting the gathering of opinions from experts and local residents, ④ supporting the development and operation of policies of policy research committees and research organizations of members, ④ supporting the development and operation of policies of policy research committees and research organizations of members, ⑤ supporting the affairs of legislative support staff of each standing committee, such as field-centered hearing, investigation, data management, and continuous monitoring work support.

B. On April 19, 2016, the Defendant issued the instant corrective order to revoke the instant recruitment notice by April 21, 2016, on the ground that the purpose of the instant recruitment notice is to introduce “persons assisting in paid to each individual of local council members” and that the instant recruitment notice violates Article 3(1), 47(1), and 67(2) of the Local Finance Act, etc.

C. As the Plaintiff did not comply with the instant corrective order, the Defendant revoked ex officio the Employment Notice on April 21, 2016 (hereinafter “instant ex officio revocation disposition”).

2. Whether the public notice of employment of this case is subject to revocation ex officio

Article 169(1) of the Local Autonomy Act provides that “When it is deemed that any order or disposition issued or taken by the head of a local government with respect to the affairs of the local government is detrimental to the public interest because it violates Acts and subordinate statutes or is remarkably unfair, the competent Minister shall issue a written order to correct it to the City/Do, and to the Si/Gun/autonomous Gu, the competent Mayor/Do Governor shall order to correct it within a specified period, and if the order or disposition issued or taken

The public notice of employment of this case is for the appointment of local public officials, which belongs to the affairs of local governments prescribed in Article 9 (2) 1 (e) of the Local Autonomy Act, and matters concerning appointment, such as the number of persons, qualifications, requirements, etc., through the public notice of employment of this case, are publicly announced and finalized, and the procedure of appointment examination, etc. is conducted thereafter.

Furthermore, unlike the purpose of an administrative litigation under the Administrative Litigation Act is to relieve citizens’ rights and interests by exercising or refusing public authority as an enforcement of law with respect to a specific fact by an administrative agency, or excluding the state of illegality as an object of administrative action corresponding thereto. Article 169(1) of the Local Autonomy Act is a provision that supervises local governments’ autonomous administrative affairs to be conducted within the scope of statutes and public interest, so there is no reason to limit its application to an administrative disposition subject to appeal litigation.

Therefore, it is reasonable to see that the recruitment notice of this case constitutes "disposition" with respect to the affairs of a local government that can be revoked ex officio under Article 169 (1) of the Local Autonomy Act, and the plaintiff's assertion disputing this cannot be accepted.

3. Whether revocation by authority of this case is illegal

A. The appointment of paid assistants to local council members is a legislative matter that shall be stipulated by the law of the National Assembly, as it seriously changes the current legal system on the status, status, and treatment of local council members (see Supreme Court Decision 201Do49, May 24, 2012, etc.).

However, with respect to the status, status and treatment of local council members, Article 33 of the Local Autonomy Act stipulates the contents of parliamentary activity expenses, public service travel expenses and monthly allowance, and Article 34 stipulates that compensation shall be paid during the session for death or injury caused by duty.

Article 90 of the Local Autonomy Act provides that a secretariat and clerical staff may be established under the conditions as prescribed by the Municipal Ordinance in order to handle the affairs of the local council. However, this provision does not provide that the local council shall assist the operation of the local council necessary for the performance of its functions as a deliberative organ and handle various administrative affairs incidental thereto, and it does not require that the local council shall assist the individual activities of the local council members (see Supreme Court Decision 96Da121, Dec. 10, 1996). Further, Article 56 (1) of the Local Autonomy Act provides that the local council may establish a committee under the conditions as prescribed by the Municipal Ordinance. Article 59 of the same Act provides that the committee shall have specialized knowledge and technical personnel other than the local council members in order to assist the chairperson and the autonomous legislative activities of the committee (hereinafter referred to as "expert members"), but it does not provide for the matters necessary for the class and the fixed number of expert members assigned to the committee (see Paragraph (1) 3), and it shall be prescribed by the Presidential Decree as the provision concerning the class and the fixed number of expert members 210.

Meanwhile, Article 112 of the Local Autonomy Act provides that the local government may have administrative organizations and local public officials necessary to take partial charge of the affairs of the local government, and Article 21-3 of the Decree on the Appointment of Local Public Officials provides that the appointment of public officials shall be made in a fixed term position. However, the above provision is merely a provision that local public officials may be appointed for the purpose of handling the affairs of the local government, and it cannot be a ground for

In addition, there is no legal basis for employing paid assistants who are not expert members in the Local Autonomy Act and other Acts and subordinate statutes.

B. The instant public official’s actual duties are support for the legislative activities of the standing committee, such as discovering, investigating, and analyzing legislative issues and supporting policy development. The duties are identical or similar to the collection and research of parliamentary materials, which are the activities of the local council members whose expenses are compensated through parliamentary activities for parliamentary activities, and auxiliary activities for such activities, and can be deemed as assistance to the parliamentary activities of the local council members.

On the other hand, the duties of the public official of this case overlap with those of the chairperson of the local council and of the expert members supporting the autonomous legislative activities of the members of the local council. According to [Attachment 5] of the former Regulations on the Administrative Organizations and Standards for the Quota, etc. of Local Governments (amended by Presidential Decree No. 27713, Dec. 30, 2016) upon delegation of Article 59(3) of the Local Autonomy Act concerning the establishment of expert members, the public official of this case may have not more than 20 expert members of Grade 4, 10, and 10 expert members of Grade 5 or below within the total number of 20 expert members in the case of the plaintiff local council, and the expert member of this case shall have adequate expertise so it is difficult to regard the appointment of the public official of this case as a lawful expert member.

In full view of the duties of the public official of this case, the scale of employment, expert members, and other office members including other office members, and the circumstances of the public notice of employment of this case revealed by the evidence and records submitted by the plaintiff, it is reasonable to deem that the local council appointment of the public official of this case is the same as the appointment of paid assistant personnel who are not expert members to the local council members. It does not change because the public official of this case is a fixed-term public official or the local council member is appointed as members of the committee to conduct legislative

Thus, the appointment of the public official of this case constitutes a legislative matter that must be stipulated by the law of the National Assembly, not by the individual local council but by the legislation of the National Assembly. Since the Local Autonomy Act and other Acts and subordinate statutes do not find any legal basis for the appointment of the public official of this case, the appointment notice of this case for the appointment of the public official of this case is unlawful, and the ex officio revocation

Therefore, we cannot accept the Plaintiff’s assertion that the revocation disposition of this case should be revoked on a different premise.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and the part concerning participation in the lawsuit is assessed against the plaintiff intervenor, and the remainder is assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)