[1] Whether a local government may enact a municipal ordinance on the delegated affairs of an agency which is a state office (affirmative with qualification)

[2] Whether a local council or a chairman of a local council may intervene or participate in the executive organ's personnel rights (negative)

[3] The case holding that Article 2 (c) and (e), Article 9 (2) and (3), and Article 10 of the Incheon Metropolitan City Ordinance on the Promotion of Private Investment Projects are stipulated as a municipal ordinance without delegation of the law concerning national affairs, and Article 11 (3) of the Act is illegal since the chairperson has interfered with the personnel rights of the market in his/her personal capacity to infringe on his/her own authority, and it goes beyond the limit of the legislative

[1] Articles 9 and 22 of the Local Autonomy Act / [2] Articles 9 and 22 of the Local Autonomy Act / [3] Articles 9 and 22 of the Local Autonomy Act

[1] Supreme Court Decision 99Do85 delivered on May 30, 2000 (Gong2000Ha, 1547) Supreme Court Decision 2006Do52 Delivered on December 13, 2007 (Gong2008Sang, 61)

Incheon Metropolitan City Mayor (Law Firm Shin, Attorneys Choi Young-sik, Counsel for the plaintiff-appellant)

The Incheon Metropolitan Council (Attorney Park Jae-won, Counsel for the plaintiff-appellant)

October 29, 2009

The re-resolution of the Ordinance concerning the Implementation of Public-Private Partnership Projects of Incheon Metropolitan City, which was made by the defendant on November 1, 2007, is null and void. The costs of lawsuit shall be borne by the

The same shall apply to the order.

1. Re-resolution of the Ordinance and summary of its contents;

The following facts may be acknowledged in light of the whole purport of the pleadings in the descriptions of Gap evidence 1-1, 2, Gap evidence 2, 3, Gap evidence 4, 5-1, and 2.

A. The Defendant passed a resolution on September 18, 2007 and transferred the Ordinance to the Plaintiff. The Plaintiff demanded re-resolution on the ground that some of the contents of the Ordinance were in violation of the statute, but the Defendant, on November 1, 2007, re-resolutioned and finalized the Ordinance as the original bill.

B. Article 6(4) of the Act on Private Participation in Infrastructure and Article 4(9) of the Enforcement Decree of the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”) stipulate the whole Ordinance on Operation of Private Investment Project by the Incheon Metropolitan City Deliberation Committee on Private Investment Project (hereinafter “Private Investment Committee”) under Article 6(4) of the same Act and Article 4(9) of the Enforcement Decree of the same Act, including the purpose (Article 1), concerning the procedures for promoting private investment projects and regional development promoted by the Incheon Metropolitan City Mayor (hereinafter “Mayor”) under the relevant Acts, in addition to the matters concerning the organization, operation, etc. of the former Private Investment Committee, and include the procedures for implementing private investment projects and the definition of regional development projects (Article 2 subparag. 2). In addition, this Ordinance provides for the procedures for implementing private investment projects and the selection of project operators (Article 3 subparag. 1), the establishment of a private investment inducement plan related to private investment projects (Article 4), the redemption and calculation of development gains (Article 6), the formation of a development project and sale standards of land within the free economic zone committee (Article 13).

2. Whether each of the draft ordinances violates Acts and subordinate statutes;

A. A local government may enact its own municipal ordinances within the scope of not violating the statutes concerning its own autonomous affairs and affairs belonging to the local government under the statutes (Article 22 and Article 9(1) of the Local Autonomy Act), but it may enact municipal ordinances only when it delegates certain matters to the municipal ordinances with respect to the delegated affairs of an agency which is the State affairs (see Supreme Court Decision 2006Hu52, Dec. 13, 2007, etc.).

B. Of Article 2 subparag. 2 and Article 10 of the Ordinance, “matters concerning regional development projects” portion

The Ordinance of this case contains industrial complex development projects (c) under Article 2 subparagraph 2 of the Industrial Sites and Development Act (hereinafter “Industrial Sites Act”), urban development projects under the Urban Development Act, housing site development projects under the Housing Site Development Promotion Act, industrial complex development projects under the Industrial Sites Act, logistics complex development projects under the Tourism Promotion Act, logistics complex development projects under the Act on the Development and Operation of Logistics Facilities, etc., which are included in the contents of free economic zone development plans under Article 8 of the Act on Designation and Management of Free Economic Zones (hereinafter “Free Economic Zones Act”), which are the definition provisions for regional development projects, and Article 3 subparagraph 1 of the Ordinance provides that the procedures for the promotion of the above regional development projects and the selection of the project operators under the Act on the Development and Operation of Logistics Facilities shall be applied to the regional development projects by the private developer under subparagraph 1 of Article 3, and the detailed provisions for them under Articles 4 through 9 of the Ordinance shall be provided

However, according to Articles 6 and 7-4 of the Industrial Sites Act, the designation of a national industrial complex among industrial complexes, the formulation of a plan for developing a national industrial complex, the designation of a project implementer, etc. among industrial complexes shall belong to the authority of the Minister, and according to Articles 3, 4, 7, 9, 10, 12, 14, and 29 of the Free Economic Zone Act, the authority such as the confirmation and modification of a development plan for a free economic zone submitted by the Mayor/Do Governor, designation and cancellation of a free economic zone, approval of an implementation plan prepared by a development project operator, announcement of completion inspection, business suspension of a development project, etc. belongs to the Minister.

In light of the contents and purport of the above legal provisions, the procedures for promoting national industrial complex development projects under the Industrial Sites Act and each development project implemented within free economic zones and the selection of a business operator constitutes national affairs, and the affairs related thereto shall be deemed to be delegated affairs by the competent Mayor/Do Governor as an agency affiliated with

Therefore, the phrase “matters concerning regional development projects” of Article 2(c) and (e) and Article 10, which defined each development project as a regional development project, is stipulated by ordinances without delegation of statutes, and is unlawful as it deviates from the limit of the legislative power under Article 9(2) of the Local Autonomy Act.

C. The part concerning the special case of land sale, loan, etc. under Article 3-2 of the Ordinance

Article 3-2 of the Ordinance of this case provides that a foreign-invested enterprise which is an executor of a development project conducted within a free economic zone shall meet the same standards as those for tax reduction and exemption under the Restriction of Special Taxation Act required for the foreign-invested enterprise to obtain the special exception of land sale

Article 16(5) of the Free Economic Zone Act provides that "The State and local governments may use, profit from, lend or sell state-owned or public property owned by the State or local governments to development project implementers or relocating foreign-capital invested companies through a free contract, notwithstanding the provisions of the State Property Act, public property and Commodity Management Act and other Acts," thereby granting local governments the right to lease or sell public property through a free contract, but the development project implementers do not provide for specific standards that can be granted such special provisions.

In full view of the legislative intent of Article 16(5) of the Free Economic Zone Act and the fact that the management of public property is the autonomous affairs of a local government, the Free Economic Zone Act does not purport to exclude the determination of the qualification standards, etc. for foreign-invested enterprises eligible for special cases concerning the sale, etc. of public property in compliance with the actual circumstances of the local government. Thus, it is difficult to deem that Article 3-2 of the Ordinance of this case violates higher statutes or infringes on the essential part of the authority to execute the head of the local government (the subject of regulation of Article 3-2 of the Ordinance of this case does not include state property

Therefore, the plaintiff's assertion that the above provision is illegal by deviating from the limit of the legislative authority is without merit.

(d) Article 9(2) and (3) of the Ordinance

Article 9(2) of the Ordinance of this case provides that “The development project to be implemented within the free economic zone shall be implemented with the classification of the following projects, such as urban development projects under Article 3 of the Urban Development Act (Article 1), and Article 9(3) of the Ordinance provides that “The sale, etc. of sites developed within free economic zones shall be governed by the relevant Acts prescribed by each subparagraph of paragraph (2).”

However, as seen earlier, each development project that is included in a development plan for a free economic zone and implemented within a free economic zone constitutes State affairs. According to Articles 3 and 9(1) of the Free Economic Zone Act, and Article 8(2)6 of the Enforcement Decree of the Free Economic Zone Act, a development plan for a free economic zone takes precedence over other development plans, and an implementer that performs a development project within a free economic zone obtains approval for an implementation plan by attaching a plan for the use, profit-making, management and disposal of land and facilities created by the development project, so the sale of land created within the free economic zone

Therefore, Article 9 (2) and (3) of the Ordinance constitutes a provision of a municipal ordinance concerning state affairs without delegation of statutes. In particular, Article 9 (3) of the Ordinance excludes the preferential application of a development plan for free economic zones, which goes beyond the limit of the legislative authority or is illegal

(e) Article 11(3) of the Ordinance

The active involvement of a local council in advance of the personnel authority of the executive organ is contrary to the purpose of separation and allocation of authority between the deliberative organ and the executive organ, and the chairperson of the executive organ is not entitled to participate in the personnel authority of the executive organ in his/her personal capacity and cannot be allowed by Municipal Ordinance (see Supreme Court Decision 93Do175 delivered on April 26, 1994, etc.).

Article 11 (3) of the Ordinance of this case stipulates that the chairperson of the Council shall appoint or commission not more than five City Council members as members of the Private Investment Committee. Since the above provision infringes on the market's inherent authority by allowing the chairperson to actively intervene in the personnel rights of the market in advance as an individual qualification, it shall be interpreted that it exceeds the limit of the legislative authority of the Ordinance and is illegal (this provision shall be interpreted as a provision that determines the person subject to recommendation by the resolution of the Council and recommend it in the name of the chairperson who is the representative, it shall not be acceptable

3. Conclusion

As seen above, as long as some provisions of the Ordinance of this case violate the law, the re-resolution of the Ordinance of this case shall be denied in its entirety. Thus, the plaintiff's claim of this case is justified, 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 on the bench.

Justices Cha Han-sung (Presiding Justice)