Plaintiff 1 and 5 others (Law Firm Chungcheong, Attorneys Choi Woo-young et al., Counsel for the plaintiff-appellant)

The head of Seongdong-gu Seoul Metropolitan Government (Attorney Condition-ho)

October 26, 2010

Seoul Administrative Court Decision 2008Guhap50445 decided June 10, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall demand the defendant to pay 24,040,080 won each to the members listed in the attached list.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts, the plaintiffs' grounds for claims, and relevant laws and regulations

This Court's reasoning is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination:

A. As to the grounds for invalidation of municipal ordinances

Article 117(1) of the Constitution of the Republic of Korea provides that “Local governments shall handle affairs concerning the welfare of residents, manage property, and enact regulations concerning autonomy within the scope of statutes,” thereby guaranteeing the autonomous legislative power of local governments, and accordingly, the main sentence of Article 22 of the Local Autonomy Act provides that “Local governments may enact municipal ordinances concerning their affairs within the scope of statutes.” The term “within the scope of statutes” refers to “within the scope of not violating the statutes.” The term “administrative affairs” is interpreted as autonomous affairs, which are inherent affairs, and delegated affairs to local governments by individual statutes.

Where a municipal ordinance enacted by a local government violates any statute, its effect shall be null and void, but the issue of whether the municipal ordinance violates the statute shall be determined individually and specifically depending on whether there exists any inconsistency or conflict between the two (see Supreme Court Decision 2002Da16, Apr. 23, 2004) by comparing the purpose, purpose, contents, and effect of each provision of the statute and the municipal ordinance.

In addition, since local governments have the authority to deal with their own administrative affairs, it may be prescribed by municipal ordinances even if it is not prescribed by statutes, and even if there are provisions concerning their own administrative affairs, the municipal ordinances may be established autonomously as guaranteed by the Constitution to the extent that they do not violate the laws and regulations. Therefore, unlike group delegated administrative affairs, it is reasonable to consider the autonomy of the municipal ordinances as to whether the autonomous legislative authority has violated the laws and regulations concerning their own administrative affairs guaranteed by the autonomous legislative authority.

In light of such legal principles, in cases where statutes only provide procedural provisions for the enactment of ordinances concerning inherent affairs, the purpose is to guarantee autonomy with respect to the contents of municipal ordinances, so the contents of municipal ordinances enacted in accordance with such procedures shall not be subject to restrictions by statutes. In addition, if the contents of the procedures were objectively followed by the procedures required by statutes in this case, even if the contents of the procedures are somewhat defective, it is so so long as the degree of the defect is so so so long as it is impossible to achieve the purpose of legislation that the procedures cannot be achieved, and it is not sufficient to go through the procedures actually, the ordinances enacted through such procedures shall not be deemed null and void solely on the ground that the defect is insufficient.

However, if the object of the municipal ordinance is related to the interests of the members of the local council so that the opinion of a third party institution, etc., which has neutrality in the process of the enactment of the municipal ordinance is reflected, the importance of the procedures for reflecting the opinion should be evaluated more than in other general cases, and whether the municipal ordinance violates the statutes or regulations. However, even if there are no special restrictions on the contents and scope of the opinion of the third party institution, it is reasonable to view that the purpose of the municipal ordinance is to ensure the neutrality of the matters that are prescribed by the municipal ordinance itself by reflecting the opinion of the third institution, which is neutral in the contents of the municipal ordinance, is to reflect in the contents of the municipal ordinance. Thus, if the third institution is formed in accordance with the procedure prescribed by the municipal ordinance and the third party institution voluntarily decided and gathered the opinion, even though there are some deficiencies in the process of determining and collecting the opinion, it is merely a mere formal process to achieve the legislative purpose of the municipal ordinance and thus, it is unreasonable for the third party institution to recognize the enactment and amendment of the municipal ordinance within the scope of the previous municipal ordinance.

Under the above premise, the grounds for the illegality and invalidity of the ordinance of this case claimed by the plaintiffs are individually examined.

B. As to the allegation of illegality regarding the composition of the Deliberation Committee

(1) According to Article 33(1) through (3) of the Local Autonomy Act (amended by Act No. 9577, Apr. 1, 2009; hereinafter the same), local council members shall pay parliamentary activity expenses, travel expenses, monthly allowances, etc., and the criteria for payment of such expenses shall be prescribed by the Municipal Ordinance of local governments within the scope determined by the relevant local government, as prescribed by Presidential Decree, and matters necessary for the organization, operation, etc. of the committee for deliberation on maintenance and improvement shall be prescribed by Presidential Decree. Accordingly, 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 under Article 33(3) of the Local Autonomy Act shall be comprised of ten members if necessary to determine the criteria for payment of expenses under each subparagraph of Article 33(1) of the Act, and members shall be selected from among the heads of local governments and the chairpersons of the academic circles, the legal circles and the civil groups shall not be commissioned by five members.”

However, according to the evidence No. 7 of the Ministry of Government Administration and Home Affairs, it can be acknowledged that the "Guidelines for the Introduction and Operation of Paid System for Local Council Members" prepared by the Ministry of Government Administration and Home Affairs to secure transparency and reliability in the determination of the standard amount of payment, such as monthly allowances for the members of the local council, is required to select the deliberation committee members after obtaining the recommendation of candidates for two to three times the deliberation committee members. However, such guidelines are merely a mere administrative guidance standard related to the organization of the deliberation committee and do not have any legal effect. Thus, even if the defendant selected the recommended candidates as the deliberation committee members in violation of the above guidelines, there is no

(2) In addition, Article 34(2) of the Enforcement Decree of the Local Autonomy Act provides that “A person who is eligible to become a review committee 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 prior to January 1 of the year in which the Committee is organized: Provided, That a person who is not entitled to vote pursuant to Article 18 of the Public Official Election Act and a public official belonging to such local government, council members, educational committee members, and their spouse, lineal ascendant or descendant, or sibling shall not be a member of the Committee” and does not

However, comprehensively taking account of the overall purport of arguments in the statements in Eul evidence Nos. 1 and 2, the defendant specified that "the person subject to recommendation shall be a holder of voting right under the Public Official Election Act from among residents over 19 years of age who had been registered as residents in Seongdong-gu Seoul Metropolitan Government since before January 1, 2007, and his/her spouse, lineal ascendant, descendant, and sibling shall not be commissioned." Accordingly, the fact that he/she was commissioned as a deliberation committee member upon recommendation of those who meet the above qualification requirements can be recognized. Thus, even if the defendant was appointed as a deliberation committee member by the Seongdong-gu Council without separately examining whether he/she is a person having interest with the Seongdong-gu Council other than the above qualification requirements, even if the defendant was appointed as a deliberation committee member by the Seongdong-gu Council, the defendant shall not be deemed to have commissioned the deliberation committee member unlawfully since such person cannot be deemed to be a disqualified person under the above provision of the Enforcement Decree.

(3) Therefore, this part of the plaintiffs' assertion is without merit.

C. Regarding illegality in the procedures for collecting opinions from local residents

(1) Article 34(6) of the Enforcement Decree of the Local Autonomy Act provides that “The Council shall, when it intends to determine the amount under paragraph (5) (the parliamentary activity expenses, travel expenses, and monthly allowances), undergo procedures to gather opinions from local residents, such as public hearings, resident opinion surveys, etc. for the propriety and transparency of the decision.”

(2) According to the statements in Gap evidence Nos. 4, 8, Eul evidence Nos. 7 and 9, the Deliberation Committee shall determine to conduct a telephone survey (ADR) by means of an automatic computer response system at the second meeting on October 4, 2007 for the gathering of local residents' opinions. The third meeting held on the 12th day of the same month and the fourth meeting held on the 25th day of the same month, discussed the questionnaire and decided to be a full-time member of the members present at the meeting. The defendant requested the "Cumulative Pump" which is a specialized public opinion poll for the objective gathering pursuant to the above decision and requested the "Public Opinion Opinion Opinion Nos. 19, sample size: 1,08, sample error size: 【3.1% at the level of trust: 【3.1% at the 5th day of the telephone answer; 5th day of the survey, the contents of the questionnaire were 1,500, as follows; and the result of the survey were 300,005 of the answer.

【Details of Survey and Results of Survey】

The age of 1:50,000 won for 1:00 won for 3:0,000 won for 2.5%) per annum; 1) 20: 21.7% for 30 to 26.3% for 40%) 50: 14.9% for 16.2% for 30,000 won or more for 30,000 won for 2.5% for 1:4% for 30,000 won for 30,000 won for 2.5% for 30,000 won for 30,000 won for 4.5% for 1:4% for 20,000 won for 30,000 won for 30,000 won or more for 30,000 won for 1.4% for 6% for 3% for 1.5% for 3% for 1.0% or more for 3% for 4% for 1.4% for local public officials for 3% for .4% for .4% for .

(3) In light of the following circumstances revealed through the relevant statutes, the facts of recognition, and the purport of the entire argument of this case, it cannot be readily concluded that the grounds alleged by the Plaintiff alone did not satisfy the substantive requirements of the residents’ opinion gathering procedures, thereby violating Article 34(6) of the Enforcement Decree of the Local Autonomy Act.

① The Deliberation Committee decided to select a ARS public opinion poll method as a procedure for gathering local residents’ opinions, and applied it as debate materials after reporting the results through an investigation conducted by a specialized public opinion poll institution. The Deliberation Committee’s choice of a ARS public opinion poll method is within the scope of legitimate discretion, and it does not specifically mean that it is illegal or unfair in such a method or procedure, and it is obvious that the result is used as data for deliberation on maintenance, it shall be deemed that the procedures for gathering opinions under Article 34(6) of the Enforcement Decree of the Local Autonomy Act have been implemented.

② In this case’s survey, “Additional Operating Guidelines for the Introduction of Local Council Members (No. 3-2)” as prescribed by the Ministry of Government Administration and Home Affairs is subject to the procedures for gathering local residents’ opinions on the provisional criteria for payment determined by the Deliberation Committee on Maintenance, but the provisional criteria for payment have not been presented. (ii) In this case’s survey, paragraph 4, only presents the existing increased total amount by constituting only the answer port of adequate maintenance, and above, and (iii) in this case’s survey paragraph 5, the number of annual session can be concurrent, and in 2007, only the number of annual session days is 88 days, the number of paid allowances of the Gu Council members cannot be denied. However, considering that the Deliberation Committee on Maintenance of this case’s opinion is insufficient to recognize that there is an excessive increase in the number of local public officials’ opinions in accordance with the purport of the Local Autonomy Act’s amendment, it can be said that there is no opinion on the increase in the number of the members’ opinions to the extent that it is unlawful.

③ In the case of a survey conducted through the ARS method, it shall be conducted at a short time as much as possible in order to raise the response ratio. If it is intended to provide information about various factors of consideration related to the determination of the amount of monthly allowances, etc. before the response to the survey, if it is intended to provide information sufficiently prior to the response, it may be difficult to investigate 1,00 persons who are the sample values due to the failure to properly perform the survey, and thus, the contents and methods of the survey conducted based on a brief question about the core matters as above are reasonably acceptable.

④ Such procedures for gathering opinions are required to undergo prior deliberation by the Deliberation Committee in determining parliamentary activity expenses, travel expenses and monthly allowances to be paid to members of the local council. The Deliberation Committee shall take into account the results obtained from the above procedures for gathering opinions in making decisions on the maintenance of parliamentary activities, but it cannot be deemed that such results are bound, anywhere to relevant statutes, the result obtained from the procedures for gathering opinions shall be reflected in the decision on maintenance of parliamentary activities or the Deliberation Committee shall not be bound.

(4) Therefore, the plaintiffs' assertion on this part is without merit.

D. As to the allegation of illegality in the payment criteria for monthly allowances

(1) As seen earlier, Article 33(1) and (2) of the Local Autonomy Act provides that local council members shall pay expenses for parliamentary activities, travel expenses, monthly allowances, etc., and the standards for payment of such expenses shall be prescribed by municipal ordinances of local governments within the scope determined by the Deliberation Committee on Maintenance of Local Governments as prescribed by Presidential Decree. Meanwhile, Article 33(1) of the Enforcement Decree of the Local Autonomy Act provides that the aforementioned standards for the payment of expenses for parliamentary activities and travel expenses shall be determined by municipal ordinances within the scope of the amount determined by the Deliberation Committee on Maintenance and Improvement of Local Governments in consideration of the financial capabilities of the pertinent local government. However, in subparagraphs 1 and 2 of the same Article, the monthly allowances shall be determined in detail in accordance with the attached Table, while the monthly allowances under subparagraph 3 shall be “amount taking into account the income level of local residents, the increase rate of remuneration

As above, the relevant Acts and subordinate statutes delegate the determination of monthly allowances to the local council's autonomy during the reorganization of the local council members, but they are required to organize an independent deliberation committee on maintenance to ensure impartiality and objectivity, not to present specific and substantial criteria for the amount or calculation method (Article 33 (1) 3 of the Enforcement Decree of the Local Autonomy Act amended by Presidential Decree No. 21075, Oct. 8, 2008). In order to solve the problems such as the increase in the payment standard of monthly allowances arising out of the absence of such substantial standard, the increase in the payment standard of monthly allowances and the difference in the payment standard by local government, after calculating the payment standard amount according to the specific formula ± 20%, the Deliberation Committee imposes an obligation to comprehensively consider the matters stipulated in the above Enforcement Decree in determining the payment standard amount.

Therefore, if the local council's resolution within the scope of the opinion of the deliberative committee is organized by the procedures prescribed by the relevant statutes and autonomous decision-making is made, it is merely a matter that has gone through the formal procedures so that it is impossible to achieve the purpose of legislation of the deliberation committee, which is the third institution in the Local Autonomy Act, even though there is a part that is somewhat insufficient in the process of decision-making of the opinion or that is not consistent with the residents' sentiments or public opinion polls, and it cannot be recognized as null and void unless there is any difference between the fact that the deliberation committee

(2) From the above point of view, in light of the following circumstances acknowledged by the purport of each of the statements and arguments in Evidence Nos. 4, 8, 5, 6, 7, 9, 10, and 11 as to the instant case, it is insufficient to recognize that the instant deliberation committee was null and void by failing to take into account the income level of the local residents, the intent of the local residents, the rate of increase in remuneration of the local public officials, the inflation rate, the performance of the local council’s parliamentary activities, etc. in determining parliamentary activities of the members of the instant deliberation committee. Furthermore, it is insufficient to recognize that the instant deliberation committee was null and void by violating Article 33(1) of the Enforcement Decree of the Local Autonomy

(1) The Deliberative Committee on the Maintenance of Local Autonomy of this case has been 0.1: the number of members of Seongdong-gu 20.0 to 20.0, the average number of members of Seongdong-gu 20.0, the number of members of the Deliberative Committee on the Maintenance of Local Autonomy of 20.0, the number of members of the Local Council for 20.0, the number of members of the Local Council for 20.0, the number of members of the Local Council for 20, the number of members of the Local Government for 20, the number of members of the Local Government for 20, the number of members of the Local Government for 20, the number of members of the Local Government for 20, the number of members of the Local Government for 20, the number of members of the Local Government for 30, the number of members of the Local Government for 20, the number of members of the Local Government for 30, the number of members of the Local Government for 30,000, the number of members of the Local Council for 26.3

② In 205, members of the local council were paid the average of KRW 13,200,00 as annual parliamentary activity expenses, average of KRW 21,200,00 as session allowances, average of KRW 21,20,000 as session allowances. As the paid system was realized, parliamentary activity expenses were maintained in the year 2006 and 2007, and the session allowances were lost, while the monthly allowances were average of KRW 14,560,00 as the average of KRW 27,760,00 as the monthly allowances was paid. Despite the fact that the paid system of local council members was realized, there was criticism that the purpose of the paid system was not actually examined because the monthly allowances were too low, and that it was necessary to form an atmosphere to increase the atmosphere by particularly raising the amount equivalent to the basic maintenance at the local council in Seoul, centering on the basic maintenance committee in Seoul in 208.

The Deliberation Committee on the Maintenance of the instant case also set the monthly allowance of 31,460,00 won (monthly 2,621,000 won) and the monthly allowance of 18,260,000 won (monthly 1,521,000) among the members of Seongdong-gu in 207 from the first meeting to the fifth meeting. The members’ opinions were replaced. However, as a result of the debate on how to increase the amount, it is inappropriate to determine the rate of increase by simply reflecting the rate of increase in the public officials’ remuneration or the rate of increase in the price for the first year, it is inappropriate to gather opinions, and then set the amount as deemed appropriate through a public opinion poll to deliberate on the maintenance based on the total amount of the payment of the improvement, and then decided as 5,500,000 won through a debate.

As a result, even if the increase rate is limited, the total amount of the improvement in comparison with the previous year was increased by 76%, monthly allowances was increased by 132%, and the rapid increase was made. This is more high compared to the increase rate of public officials' remuneration, inflation rate, wage increase rate of workers, etc. As a result of the survey, there is a substantial difference between the annual salary of 40 million won supported by the residents of 74.6%.

However, the former Local Autonomy Act, which was amended on August 4, 2005 and enforced on January 1, 2006, requires members of the local council to pay only expenses for parliamentary activities, travel expenses, and session allowances (Article 32 of the former Act). However, from the Local Autonomy Act (Act No. 7670) to the above amendment, monthly allowances, other than expenses for parliamentary activities and travel expenses, are to be paid to members of the local council, and the payment criteria are to be prescribed by ordinances of the relevant local government within the scope determined by the Deliberation Committee on Maintenance and Improvement (Article 32). The so-called paid allowances from the year 2006 to the members of the local council who had existing unpaid honorary positions, were to be made available for the collection and research of parliamentary materials among them and to preserve expenses required for such activities under the order of the chairman. Therefore, it is not appropriate to grant them for them to be freely used for the purpose of maintaining their respective remuneration in terms of their nature, such as making their respective paid allowances to the local council without remuneration to be paid for the above purpose.

As such, it is inappropriate to compare the rate of increase in the remuneration of public officials for one year or simply with the rate of increase in the rate of increase in the rate of increase in the remuneration of public officials or the rate of increase in the rate of increase in the rate of increase, as long as local council members have been paid monthly allowances for 2006 and 2007 too low, despite the fact that the purpose of the paid system has been substantially impaired. Rather, considering the fact that there is an appropriate amount of remuneration, it is more reasonable to consider whether to treat the Gu council members in accordance with the remuneration or the honorable treatment of public officials by comparing the total amount of remuneration rather than considering the rate of increase in the remuneration of public officials or the rate of increase in the rate of increase in the rate of increase in the remuneration of public officials. Therefore, according to the survey, the examination conducted by the Deliberation Committee on the Maintenance of Local Council of this case is subject to the above related matters. According to the opinion of the Director General of Seongdong-gu, the average amount of remuneration of 50% per annum in 207 and the average remuneration of 2070% per year is difficult.

Furthermore, the standard number of session allowances paid for the number of days of attendance during the session of the Council on the basis of 2005 before the paid system was implemented shall be 100,000 won per day, and according to the purport that the annual number of days is changed into monthly paid allowances by making members of the Gu as annual paid allowances, it shall be 3,650,000 won if the monthly paid allowances are calculated based on the above standard number of days. Furthermore, even if the actual results are reflected in the paid system, the treatment of Seongdong-gu Council members shall be increased by about 67% compared to the previous ones (average 1,4560,000 won x 1.67), and if it appears that the actual substance of the paid system is reflected in the increase of remuneration, it is reasonable to pay the monthly paid allowances for 00,000 won per month as annual paid allowances (average 30,000,000 won) and 30,006,000 won per year (average 4,0060,5060) annual paid allowances for local residents in 2.

Therefore, in light of these various circumstances, even if the monthly allowance decided by the Deliberation Committee on the Maintenance of the Local Autonomy was considerably higher than the previous monthly allowance, and there is a difference between the result of the survey that supported the annual salary of about 40 million won by many residents, it is insufficient to view that the deliberation committee made a resolution on the number of monthly allowances in this case to autonomously determine the number of monthly allowances in consideration of the income level of local residents, the rate of increase in remuneration for local public officials, the increase in the rate of increase in the number of local council members, and the performance of the parliamentary activities of local council members, and that the purpose of Article 3 (1) 3 of the Enforcement Decree of the Local Autonomy Act was substantially violated or that the deliberation was conducted so as to disproving the purpose thereof.

③ Under the former Local Autonomy Act, the causes of the same dispute surrounding the increase in monthly allowances are determined in principle by a statutory method, such as revising municipal ordinances by opening a deliberation committee to reduce monthly allowances, or enforcing the amendment of the former Local Autonomy Act by formulating a specific standard by prescribing the appropriateness of the contents of municipal ordinances based on such discretion, without presenting a specific method of calculating the amount of monthly allowances as prescribed by Article 33(1)3 of the Enforcement Decree of the Local Autonomy Act amended by Presidential Decree No. 21075, Oct. 8, 2008, and allowing a wide range of discretion to determine the amount thereof. Therefore, even if the amount deliberated upon by a broad discretion is a large amount of money, if there is no obvious procedural reason to the extent that the municipal ordinances are invalid, it is unreasonable in light of the aforementioned general legal principles as seen earlier.

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

3. Conclusion

Therefore, the plaintiffs' claims based on the premise that the ordinances of this case are illegal and invalid are without merit, and the judgment of the court of first instance is unfair in conclusion, and it is so revoked, and the plaintiffs' claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Yong-deok (Presiding Judge)