[1] The meaning of "procedures for collecting opinions of local residents" under Article 34 (6) of the Enforcement Decree of the Local Autonomy Act and the premise for the procedure for collecting opinions of local residents to comply with the purport of the provisions of the Local Autonomy Act and the Enforcement Decree of the Local Autonomy Act

[2] The case holding that since the "decision on the standard amount of monthly allowances for council members" by the deliberation committee on parliamentary activity expenses of an autonomous Gu violates Article 33 (1) 3 and Article 34 (6) of the Local Autonomy Act, and the "Ordinance on the Payment of parliamentary activity expenses, etc. of council members" which was enacted as a direct cause is also unlawful and invalid, the payment of monthly allowances made under the unlawful ordinances is null and void since there is no legal ground

[1] Article 34(6) of the Enforcement Decree of the Local Autonomy Act provides accurate and sufficient information about the amount of monthly allowances (income level of local residents under Article 33 of the Enforcement Decree of the Local Autonomy Act, rate of increase in remuneration of local public officials, rate of increase in the number of local public officials, and performance of local council activities, etc.) in order to comply with the purport of the provisions of the Local Autonomy Act, a series of procedures and processes that enable local residents to reasonably express their opinions in accordance with democratic procedures by forming their opinions on the amount of monthly allowances, etc. under the given status of information necessary for making decisions, and in particular, a residents’ opinions should be conducted in an objective and neutral manner so that it does not distort and reflect the opinions of local residents. In short, the above opinion gathering procedures should be provided with accurate and neutral information about various factors related to the determination of monthly allowances, etc. (income level of local residents under Article 33 of the Enforcement Decree of the Local Autonomy Act, factors such as increase in remuneration, increase in the number of local public officials, and performance of local council activities.

[2] The case holding that since the procedure for gathering opinions of local residents implemented by the deliberation committee on parliamentary activity expenses of an autonomous Gu is made in a way that is likely to distort or biased the opinions of local residents without being provided with sufficient information, and it cannot be deemed that the decision was made after discretionary determination because the matters to be considered when determining the standard amount of monthly allowances are sufficiently well-founded, the above deliberation committee's "decision on the standard amount of monthly allowances for council members" violates Article 33 (1) 3 and Article 34 (6) of the Enforcement Decree of the Local Autonomy Act, and the above deliberation committee's "decision on the standard amount of monthly allowances for council members" violates Article 33 (1) 3 and Article 34 (6) of the Enforcement Decree of the Local Autonomy Act, and the Ordinance on the Payment, etc

[1] Article 34 (6) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008) / [2] Articles 33 (1) 3 and 34 (6) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008)

Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

The head of Yangcheon-gu Seoul Metropolitan Government (Attorney Kang-sik, Counsel for defendant)

April 3, 2009

1. The defendant shall request the defendant to pay KRW 19,159,200, respectively, to the persons listed in the attached list.

2. The costs of the lawsuit are assessed against the defendant.

The defendant shall request the defendant to pay the amount at the rate of KRW 1,596,60 per month prior to the enforcement of the amended Ordinance, since December 20, 2008, the Yangcheon-gu Seoul Metropolitan Council Ordinance on the Payment of Expenses for parliamentary Activities, etc. for Council Members (amended by Ordinance No. 797, Dec. 26, 2007) has been legally amended to the defendant from 17,562,600 and December 20, 2008.

1. Basic facts

A. 267 residents of Yangcheon-gu Seoul Metropolitan Government (hereinafter referred to as the "Yyang-gu") including the plaintiff (hereinafter referred to as the "applicants") made a resident audit request (hereinafter referred to as the "request for inspection of this case") as provided by Article 16 (1) of the Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2008) on April 25, 2008 for the reason that the defendant violated the statutes or significantly undermines public interests pursuant to the Yangcheon-gu Seoul Metropolitan Council Ordinance on the Payment of Expenses for parliamentary Activities, etc. for Council Members (amended by Ordinance No. 797 of Dec. 26, 2007; hereinafter referred to as the "Ordinance of this case").

B. Accordingly, the Seoul Special Metropolitan City Mayor, from June 27, 2008 to August 25, 2008, conducted an audit of the matters subject to the instant request for inspection, and thereafter, on August 22, 2008, pursuant to Article 16(3) of the Local Autonomy Act, (i) the Defendant, including the Plaintiff, failed to properly operate the parliamentary activity deliberation committee (hereinafter referred to as the “deliberation committee”), including the Plaintiff, (ii) the monthly allowance increase without any special reason despite the determination of the increase considering various kinds of wages, inflation rate, financial independence rate, resident income level, etc. (hereinafter referred to as the “monthly allowance, etc.”) and (iii) the procedures for conducting parliamentary activities were wrong, and (iv) the result of the deliberation and resolution of the instant Municipal Ordinance that the execution of business activities for parliamentary activities was not appropriate (hereinafter referred to as the “audit results of the instant case”), (iii) the Defendant was required to submit the outcome of the instant request for thorough review to the Defendant, and (iv) the amendment of the Municipal Ordinance and the instant proposal.

C. The Plaintiff did not include substantial measures to recover monthly allowances already paid to the persons listed in the attached list of Yangcheon-gu Council members (hereinafter “instant Council members”), and accordingly, filed the instant lawsuit, such as the purport of the claim, pursuant to Article 17(1) of the Local Autonomy Act, on the ground that the instant request for measures does not constitute a recovery of financial losses.

D. Meanwhile, the instant Ordinance was amended by Ordinance No. 843 on December 30, 2008 to KRW 2,316,660 per month, and was enforced from January 1, 2009.

[Reasons for Recognition] : Facts without dispute, Gap evidence 2, Gap evidence 3-1 and 2, and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The ordinances of this case are illegal and invalid for the following reasons in violation of the criteria and procedure for determination of monthly allowances of the members of the local council as prescribed in Articles 33 and 33 and 34 of the Local Autonomy Act, and pursuant to the ordinances of this case, the members of this case shall be deemed to have violated the criteria and procedure for determination of monthly allowances of the members of the local council, and pursuant to the ordinances of this case, the amount exceeding monthly allowances by the rate of KRW 1,850,000 per month as prescribed by the Yangcheon-gu Seoul Metropolitan Council Ordinance on the Payment of Expenses for Parliamentary Activities (amended by Ordinance No. 724 of June 15, 2006; hereinafter referred to as the "Ordinance of this case") before the amendment of the ordinances of this case among monthly allowances received from the defendant shall be deemed to have accrued without any legal cause and shall be returned as unjust gains. Thus

1) Illegal organization and operation of the Deliberation Committee

The defendant and the chairperson of the Yangcheon-gu Council shall obtain a single recommendation from candidates for deliberation committee members, other than multiple recommendations, in violation of relevant Acts and subordinate statutes, such as the Local Autonomy Act, and guidelines of the Ministry of the Interior and Safety, and the selection of deliberation committee members by neglecting eligibility examination, etc. shall be made to determine the criteria for the payment of fair and objective monthly allowances, etc. from the stage of composition.

In addition, the fourth Deliberation Committee made a lawful and reasonable determination of the maximum amount of monthly allowances, etc. as KRW 40,000 per annum with five affirmative votes (in the attendance) of the nine members present at the 4th Deliberation Committee. However, due to arbitrary statutory interpretation of the public officials in charge of the proceedings and the some members of the 5th Deliberation Committee, the matters determined by the 4th Deliberation Committee were invalid, and the payment standards such as the final monthly allowances were determined as KRW 54,560,00 per annum.

2) Violation of procedures for gathering opinions from local residents

The purpose of Article 34 (6) of the Enforcement Decree of the Local Autonomy Act, which prescribes that the procedures for collecting opinions of local residents shall be mandatory in making decisions on the payment standards for monthly allowances, etc., is to secure the propriety and transparency of the process for collecting opinions of local residents, such as public hearings, survey of residents' opinions, and thereby securing the propriety and transparency of the process for determining payment standards, such as monthly allowances, but the Deliberation Committee, while conducting a public opinion poll on the increase of monthly allowances, did not notify residents of the amount of monthly allowances, etc. paid to the members of Yangcheon-gu Council provisionally determined by the Deliberation Committee, and the amount of monthly allowances, etc. and the amount of monthly allowances, etc. paid to the members of the Council at the time, without notifying the residents of the provisionally determined payment standards, was to neglect the preliminary review on the survey proposal and induce the increase of monthly allowances, etc.

3) Violation of standards for payment of monthly allowances

Article 33 (1) 3 of the Enforcement Decree of the Local Autonomy Act provides that income level of local residents, rate of increase in remuneration for local public officials, rate of inflation, performance results of activities of local councils shall be determined by municipal ordinances within the scope of such amount in consideration of the financial capabilities of the relevant local government, etc. according to the monthly allowance payment criteria. However, the Deliberation Committee set monthly allowances at the level of income of Yangcheon-gu residents within the scope of such amount, considering the financial capabilities of the relevant local government. The rate of increase in public officials' wages is 8th among the 25 autonomous Gus in Seoul area. The rate of increase in public officials' wages is 2.5% in Seoul area, 2.2% in 206 in 207, workers' wage increase rate is 1.4% in 207, and workers' wage increase rate is 5.8% in 207, and the level of financial self-sufficiency is 1,850,000 won in preparation for the previous year.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

1) Determination as to the allegation of illegality in the composition and operation of the Deliberation Committee

A) Article 34(1) of the Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075, Oct. 8, 2008; hereinafter the same) provides that “The Deliberation Committee established under Article 33(3) of the Act shall be comprised of 10 members if it is necessary to determine the standards for paying expenses under each subparagraph of Article 33(1) of the Act, and the head of a local government and the chairperson of a local council shall select five persons from among the persons recommended by academic circles, legal circles, press circles, civic groups, etc., and the head of a local government shall commission the head of a local government.” However, it does not require the Ministry of Public Administration and Security to recommend multiple candidates from academic circles, legal circles, press circles, civic groups, etc. to secure transparency and credibility in the determination of the standards for paying monthly allowances for members. However, according to the guidelines for the introduction and operation of local council members prepared by the Ministry of Public Administration and Security to secure transparency and credibility in the determination of the amount of monthly allowances for members.

B) Meanwhile, Article 34(2) of the Enforcement Decree of the Local Autonomy Act provides that "the person who is eligible to become a deliberative member shall be a person aged 19 or older who has been registered as a resident in the district under the jurisdiction of the local government concerned continuously for one year before January 1 of the year in which the Committee is organized: Provided, That the public officials belonging to a local government pursuant to Article 18 of the Public Official Election Act and public officials belonging to such local government, council members, educational council members, and their spouse, lineal ascendant or descendant, and siblings shall not become a member," and stipulates the qualification requirements of a deliberative member and does not specify any other specific eligibility requirements. The purport of each statement and argument in subparagraphs 1 and 2 of Article 34 of the Enforcement Decree of the Local Autonomy Act at the time when the request for the recommendation of a deliberative member is made is made, the defendant stated that "the person subject to the recommendation is a voting right holder under the Public Official Election Act among residents aged 19 or older who are registered as a resident in Yangcheon-gu Seoul Metropolitan Government from the beginning date of the relevant year."

C) In addition, according to the purport of the evidence No. 3-2 and evidence No. 3-2 and the whole pleadings, the Deliberation Committee shall be held on December 29, 2007 by 9 members present at the 4,500,000 won per year with the consent of 5,00 won among the 4th Deliberation Committee held on December 29, 2007, which was held on December 31, 2007 (hereinafter “4th Decision”), and the fifth Deliberation Committee held on December 31, 2007, which held that some of the 4th Deliberation Committee members failed to meet the 5,560,00 won by holding the 54,00 won (hereinafter “5th Decision”), and thus, it shall be held that the 4th Decision by the Deliberation Committee’s resolution on the amount of monthly allowances, including the number of the 5th Decision, should be held invalid by the majority of the members of the Local Autonomy Act without the consent of the 3th Deliberation Committee. However, according to Article 34(5) of the Enforcement Decree’s Decision on the remaining amount of the 13rd Decision.

D) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Determination of illegality in the procedures for gathering opinions from local residents

A) Article 34(6) of the Enforcement Decree of the Local Autonomy Act provides that “When the Council intends to determine the amount under paragraph (5), it shall undergo procedures to gather opinions from local residents, such as public hearings and resident opinion surveys, to ensure the propriety and transparency of such determination.” In light of the fact that the local autonomy system in Korea is implemented in accordance with the principle of free democracy to reduce the State’s tasks and realize the ideology of democracy and separation of powers by treating the local autonomy under its own responsibility through the self-government organization within the region of the local government, and to reduce the local autonomy capacity of the local residents, the procedure to gather opinions prescribed in the above Enforcement Decree is to provide local residents with an opportunity to improve their democratic capacity by directly participating in the determination procedure of monthly allowances, etc. of the Gu Council members, and to ensure that the Deliberation Council is in a transparent and fair manner by preventing the risk that local residents can make a voluntary determination of the amount of monthly allowances, etc., and to reflect the opinions of local residents in support of the determination of the amount of monthly allowances, etc.

Therefore, "procedures to gather opinions from local residents" under the above provision of the Enforcement Decree does not simply mean simply formally from local residents, but it includes a series of procedures and processes that enable local residents to reasonably form their opinions on the amount of monthly allowances, etc. under the given status of sufficient information necessary for making decisions and to present their opinions in accordance with democratic procedures. In particular, it is necessary to conduct a residents' opinion survey in an objective and neutral manner so that the opinions are not distorted and reflected. In conclusion, in order to comply with the purport of the provisions of the Enforcement Decree of the Local Autonomy Act and the Local Autonomy Act, it is necessary to provide accurate and sufficient information about various factors related to the determination of the amount of monthly allowances, etc. (income level of local residents under Article 3 of the Enforcement Decree of the Local Autonomy Act, increase rate of remuneration for local public officials, increase rate of remuneration for local public officials, and performance of local council's parliamentary activities, etc.).

B) Based on the above legal principles, the following facts are acknowledged based on the overall purport of statement and oral argument as follows: ① the Deliberation Committee has conducted public opinion pollss by failing to provide all consideration factors related to the determination of monthly allowances, etc. ② The second clause of the written opinion survey document stating that “I think it would be possible to contribute to a certain degree of increase in the Gu council members’ parliamentary activity activity” in the text of the written opinion survey document stating that the existing written opinion survey document suggests that the existing parliamentary activity activity is not realistic, and is somewhat biased, and thus, it seems that the scope of the Plaintiff’s payment for the Gu council members in 2008 was appropriate, and the Plaintiff’s opinion that was implemented is not sufficient to gather opinions in the way of opinion gathering, 50,000 won or more, 45,000 won or more, 57,000 won or more, or 450,000 won or more, which is difficult to be provided on the premise that it is difficult to gather opinions from the local residents in the way of opinion gathering.”

3) Determination of illegality in the payment criteria for monthly allowances

A) Article 33(1)3 of the Enforcement Decree of the Local Autonomy Act provides that the amount shall be determined by Municipal Ordinance within the scope of the amount in consideration of the income level of local residents, the rate of increase in remuneration for local public officials, the inflation rate, the performance of activities of the local council, etc. according to the monthly allowance payment criteria, but the above provision does not present specific and substantial criteria for the monthly allowance per se (Article 33(1)3 of the Enforcement Decree of the Local Autonomy Act amended by Presidential Decree No. 21075, Oct. 8, 2008). However, Article 33(1)3 of the Enforcement Decree of the Local Autonomy Act, which is amended by Presidential Decree No. 21075, provides that the monthly allowance payment criteria shall be determined within the scope of 【20% after calculating the monthly allowance payment criteria according to the specific formula for each local government to solve the problems, such as the increase in the monthly allowance payment criteria arising from the absence of such substantial standard, and the monthly allowance payment criteria shall be determined within the scope of 【20%'s.

B) In light of the above facts, the Defendant’s 3-month increase in the annual salary and 4-month increase in the number of 5-month local council members by 1-month increase in the number of 6-month council members and 1-month increase in the number of 6-month council members by 3-month council members and 2-month council members’ annual salary increase in the number of 5-month council members by 3-month council members’ annual salary increase in the number of 6-month council members and 3-month council members’ annual salary increase in the number of 6-month council members’ annual salary increase in the number of 5-month council members, 1-month council members’ annual salary increase in the number of 6-month council members’ annual salary increase in the number of 3-month council members and 4-month council members’ annual salary increase in the number of 0-month council members’ salary increase in the number of 6-month council members’ annual salary increase in the number of 6-month council members’ annual salary increase in the number of 1-month.

4) Sub-committee

As such, the determination of the standard amount for the payment of monthly allowances of the Deliberative Committee is illegal as it violates the provisions of Articles 33(1)3 and 34(6) of the Enforcement Decree of the Local Autonomy Act, and the ordinances of this case enacted by Yangcheon-gu on the direct ground thereof shall also be deemed null and void as well. As such, the Defendant’s payment of monthly allowances made under the illegal ordinances of this case shall be deemed null and void as it is related to the relationship between the person who made the decision of this case and the member of this case who received the payment.

Therefore, pursuant to the instant ordinance, from January 2008 to December 2008, the instant ordinance was amended by Ordinance No. 843 of December 30, 2008 to KRW 2,316,660, and it was applied from January 1, 2009 to January 1, 2009. However, there is no specific assertion or proof that the said amended ordinance is invalid due to unlawful violation. Thus, the period of "before the amendment of the instant ordinance was lawfully amended and enforced until December 2008," which the Plaintiff sought in the purport of the claim, is the period until December 3, 2008, from among the monthly allowances based on the rate of KRW 1,446,60, which was paid to the Defendant at the rate of KRW 1,850,00, KRW 200, KRW 19, KRW 106, KRW 4005, KRW 106, KRW 4005, KRW 200, KRW 1606, KRW 406,5006.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

[Attachment 1] List: 18 members of the Yangcheon-gu Seoul Metropolitan Council (name omitted) who were paid monthly allowances from January 2008 to January 2008 under the Ordinance of this case.

[Attachment 2] Relevant Acts and subordinate statutes: (Omission)

Judges Tae Tae-tae (Presiding Judge)