The authority of the Do Governor to delegate to the head of the Gun with the approval of the delegated agency (affirmative)

The proviso of Article 5 (1) of the Government Organization Act declares that if there are legal grounds, it is possible to re-endorse the authority, and Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority stipulates that the delegated agency may re-endorse the authority in accordance with the regulations after obtaining approval from the head of the Seoul Special Metropolitan City, Metropolitan City, Metropolitan City, Do, or Do Governor in the case of the superintendent of education. Therefore, if the Do governor re-endorses the authority to the head of the Gun in accordance with the Regulations on Delegation and Entrustment

Article 5 (1) (proviso) of the Government Organization Act, Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority

Korea Passenger Transport Corporation and 1 other

Mag Chang-gun

Busan High Court Decision 88Gu87 delivered on November 18, 1988

The case shall be reversed and remanded to Busan High Court.

As to the Grounds of Appeal:

According to the reasoning of the judgment in this case, the court below determined that the defendant's right to authorize the automobile depots usage fee under Article 12 (1) of the Automobile Rental Act, which was at issue by the defendant's exercise of his own name, was originally the matters of the Minister of Construction and Transportation, and that the above authority was delegated to the Do governor, etc. under Article 34 of the same Act and Article 2 (7) of the Enforcement Decree of the same Act, but there is no legal basis to regard that the above authority was re-entrusted to the subsidiary organs or subordinate administrative agencies, and even in this case, even if the Gyeongnam Do governor re-entrusts the above authority in accordance with the Administrative Delegation Rules, it is not based on laws and regulations, and therefore it is merely an internal delegation of authority rather than an internal delegation of authority, and therefore, the above authority cannot be exercised under his own name, which is the delegated agency, even if he exercises the above authority, the disposition of this case by the defendant's own name is invalid.

However, according to the proviso of Article 5 (1) of the Government Organization Act, the delegated agency which is delegated with the authority by an administrative agency may re-entrust part of the delegated authority to its subsidiary agency or subordinate administrative agency as determined by law, and if there are legal grounds, it shall be possible to re-endorse the authority. Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority provides that the Seoul Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor (including the Superintendent of the Office of Education of Seoul, Metropolitan City, or Do), if deemed necessary for improving the efficiency of administration and for the convenience of residents, may re- delegate part of the delegated authority to the head of the Gu, the head of the Si, Gun (including the head of the Office of Education, the head of the Office of Education, the head of the Office of Education, the head of the Office of Education, the Do governor, and the Superintendent of the Office of Education, and the head of the Office of Education, if so determined by the Regulations on Delegation and Entrustment of Administrative Authority, it constitutes legitimate ground for the proviso of Article 5 (1) of the Government Organization Act.

Therefore, the court below should have judged whether or not the defendant's authority to authorize the use fees of this case, which is one's own authority, was re-entrusted to the defendant in accordance with the provisions of the Ordinance of the Ministry of Construction and Transportation after examining whether or not the above authority was re-entrusted to the defendant in accordance with the approval of the Minister of Construction and Transportation. The court below determined that there was no legal ground to deem that the above authority was re-entrusted to the defendant. Thus, the court below erred in the misapprehension of legal principles as to the ground laws

We reverse the original judgment, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)