[1] Scope and limitation of the local government's legislative power

[2] Whether the permitted affairs of graveyards, etc. are autonomous affairs of the Do, which are inherent affairs of the Do

[3] Whether delegation of the right to permit a cemetery, etc. to the head of a Si/Gun by the Do Governor is an agency delegation

[4] The case holding that a Gun Ordinance governing permission affairs such as cemeteries delegated by a Do Governor to the head of a Si/Gun violates the main sentence of Article 15 of the Local Autonomy Act

[5] Whether the requirements for permission for the establishment of a private cemetery, etc., belonging to the discretion, can be added to the municipal ordinance without the delegation of the law

[6] Whether the head of the Gun is deprived of discretion under the Gun Ordinance concerning the establishment of a public charnel house to which discretion has been given by the head of the Gun

[1] Matters that a local government may enact under the main sentence of Article 15 of the Local Autonomy Act refer to autonomous affairs, which are the affairs inherent in the local government, and the so-called organization delegation delegated by individual statutes, to the local government, and matters concerning the delegated affairs of the local government, which are delegated to the head of the local government or delegated to the head of the subordinate local government, shall be outside

[2] Although permission for graveyard, etc. established by a foundation falls under the Do's affairs, according to the Burial and Graveyard, etc. Act, the permission for graveyard, etc. established by a clan belongs to the Do's affairs, and according to the Local Autonomy Act and the Enforcement Decree of the same Act, it is differently stipulated that it belongs to the Si/Gun's affairs. However, the proviso to Article 8 of the Enforcement Decree of the Local Autonomy Act provides that "the same shall not apply to cases where other Acts and subordinate statutes provide otherwise." Thus, permission for graveyard, etc. established by a clan, etc. can be deemed as a special provision of the Burial and Graveyard, etc., unlike the Local Autonomy Act, and in light of the fact that the Burial and Graveyard, etc. Act is higher than the Enforcement Decree of the Local Autonomy Act, it is interpreted that the permission for graveyard, etc.

[3] It is not an organization delegation but an organization delegation to the head of a Si/Gun who delegated the right to permit a cemetery, etc. by the Do Governor.

[4] Since there is no ground for delegation that the authority entrusted by the Do Governor with permission for graveyard, etc. is the head of a Gun, not a Gun, which is a local government, but a subordinate administrative agency of the Do, and there is no ground for delegation that the head of a Si/Gun, which is an agency specially delegated by the Burial and Graveyard, etc. Act or the Do Ordinance on Delegation of Administrative Affairs, may establish a municipal ordinance governing its affairs, Article 3 of the "Ordinance on the Hearing of Residents' Opinions" decided by the Do Council is in violation of the main sentence of Article 15 of the

[5] The act of establishing a private cemetery, etc. under Article 8 of the Burial and Graveyard, etc. Act shall be deemed to be a continuous discretionary act according to the criteria stipulated in Article 5(2) of the Enforcement Decree of the same Act. Thus, an administrative agency shall not permit the establishment of a private cemetery, etc., if the standards determined by law are met, and Article 3 of the Ordinance on the Permission for the Establishment of a Private Cemetery, etc., which is decided by the Military Assembly, increases the requirements for the permission for the establishment of a private cemetery, etc. under the above Act by the new requirements for the consent of at least 2/3 of the residents within the influence area without the basis of the above Act. Thus, if the requirements of the law are met, it is unlawful in violation of the Burial and Graveyard, etc. Act, which provides that the permission for

[6] Article 7 (1) of the Burial and Graveyard, etc. Act imposes the head of the Gun with respect to public cemeteries and public crematoriums, and unlike this, Article 7 (2) of the same Act provides that the head of the Gun may establish a public charnel house in consideration of the necessity thereof, because the period and necessity of the establishment of a charnel house has not yet been universalized in our society, Article 7 (2) of the same Act provides that the head of the Gun shall take the discretion in the determination of the head of the Gun with respect to the timing and necessity thereof, and Article 7 of the "Ordinance on the Hearing of Opinions of Residents when the head of the Gun grants permission for the installation of a public charnel house, etc." goes against the legislative intent of the same Act by depriving the head of the Gun of the discretion in determination. Accordingly, Article 7 of the above Ordinance violates

[1] Article 15 of the Local Autonomy Act / [2] Article 15, Article 9 (2) 2 (g) of the Local Autonomy Act, Article 10 (2) of the Local Autonomy Act, Article 8, subparagraph 2 (h) of attached Table 1-2 of the Enforcement Decree of the Local Autonomy Act, Article 8 of the Burial and Graveyard, etc. Act / [3] Articles 15, 10 (1) 1 and 95 of the Local Autonomy Act / [4] Articles 15, 10 (1) 1 and 95 of the Local Autonomy Act / [5] Article 15 of the Local Autonomy Act, Article 8 of the Burial and Graveyard, etc. Act, Article 5 (2) of the Enforcement Decree of the Burial and Graveyard, etc. Act / [6] Article 15 of the Local Autonomy Act, Article 7 of the Burial and Graveyard, etc. Act

[1] [4] Supreme Court Decision 92Da31 delivered on July 28, 1992 (Gong1992, 2575) / [5] Supreme Court Decision 94Nu354 delivered on September 13, 1994 (Gong194Ha, 2657)

Yangyang-gun (Attorney Kim Tae-Gyeong, Counsel for defendant-appellant)

The Gyeyang-gu Council

The re-resolution of the Ordinance on the Hearing of Residents' Opinions at the time of permission for the establishment of the Hanyang Military Cemetery, etc. on March 13, 1995 by the defendant is invalid. The costs of the lawsuit shall be borne by the defendant.

1. The following facts can be acknowledged according to the evidence Nos. 1 to No. 8, for which no dispute over establishment exists.

A. On December 20, 1994, at the 38th extraordinary session of December, 1994, the Defendant passed a resolution on the draft of the Ordinance Concerning the Residents’ Opinion at the time of granting permission for the establishment of the Gyeyang Military Cemetery, etc. (hereinafter “instant Ordinance”). On January 10, 1995, the Plaintiff demanded reconsideration pursuant to Article 19(3) of the Local Autonomy Act on the ground that the instant Ordinance violated the Local Autonomy Act and the Burial and Graveyard, etc. Act, and the Defendant re-resolutioned the same as the original bill at the 40th extraordinary session of March of the same year.

B. Articles 3 and 7 of the Ordinance of this case, which were re-decided, are as follows:

Article 3 (Reflection of Residents' Opinions in Permission for Installation of Cemeteries, etc.)

(1) In dealing with a civil petition for installation of a cemetery, etc., the head of the Gun shall not grant permission without the consent of not less than 2/3 of the persons subject to hearing of opinions under Article 5: Provided, That this shall not apply to the public opinion established by the Gyeyang Military or the family cemetery of a clan or of a natural person who is not for profit

(2) The sphere of influence shall be as follows:

1. All areas of rearrangement of the planned area;

2. Within 1 km in a visible and straight line from the planned land;

3. An area adjoining 100 meters within 4km of a planned access road (road traffic);

4. In the case of subparagraph 2, the whole area of the village where a part of the village falls under the case of subparagraph 2 shall be subject to the whole area of the same village, and the determination of geographical influence shall be made

Article 7 (Installation of Public Facilities)

The head of the Gun shall establish public crematoriums and charnels to be used by residents of Gyeyang-gun in order to restrain the attraction of private cemeteries, etc. for the purpose of business management and to prevent the occurrence of illegal cemeteries and improve cremation.

C. The Governor of the Gyeonggi-do delegated the authority to establish a private cemetery, etc. to the head of the Si/Gun pursuant to subparagraph 8 of attached Table 2 of the Gyeonggi-do Ordinance on the Delegation of Administrative Affairs (Ordinance No. 2477 of August 5, 1994).

2. Summary of the plaintiff's principal

A. Article 3 of the Ordinance of this case, which provides that the residents' opinions shall be heard at the time of permission to establish cemeteries, crematoriums, and charnel houses (hereinafter referred to as " Cemeteries, etc.") shall be restricted to the right of permission of the head of the Gun without the delegation of the Act. The above Ordinance of the Ministry of Gun, which unfairly infringes upon the right of permission of the head of the Gun as a discretionary act, and according to the Burial and Graveyard, etc. Act, although it belongs to the authority of the Do governor, it is delegated to the head of the Si/Gun under the Gyeonggi-do Ordinance on Entrustment of Administrative Affairs, which is not a autonomous affairs or the delegated affairs of the

B. Article 3 of the Ordinance of this case is in violation of Article 8-2 of the Burial and Graveyard, etc. Act, Articles 4, 5 and 9 of the Enforcement Decree of the same Act, and Article 7 of the Ordinance of this case also violates Article 7 (2) of the same Act.

3. Judgment on the plaintiff's assertion

A. Whether Article 15 of the Local Autonomy Act is violated

Matters that local governments may enact in accordance with the main sentence of Article 15 of the Local Autonomy Act refer to autonomous affairs, which are the inherent affairs of local governments, and the so-called organization affairs delegated by individual Acts and subordinate statutes, and matters concerning the so-called delegated affairs of local governments, which are delegated to the heads of local governments or delegated to the heads of subordinate local governments, are outside the scope of the enactment of the Municipal Ordinance (see Supreme Court Decision 92Do31 delivered on July 28, 1992)

Article 8 of the Burial and Graveyard, etc. Act provides that a person who intends to establish a private cemetery, private crematorium, or private charnel (hereinafter referred to as "private cemetery, etc.") shall obtain permission from the Do Governor, and stipulates that the affairs of the Do for permission to establish a private cemetery, etc. Meanwhile, according to Article 9 (2) 2 (g) of the Local Autonomy Act, the operation and management of a cemetery, etc. shall be prescribed as the affairs of a local government. According to Article 10 (2) of the same Act and Article 8 of the Enforcement Decree of the same Act and subparagraph 2 (g) of attached Table 1-2 (g) of the same Table, the permission to establish a cemetery, etc. operated by a foundation corporation shall be prescribed as the affairs of the Do, a clan, a sibling, or a natural person (hereinafter referred to as "a clan, etc.") as the affairs of a Si/Gun.

Examining the provisions of each of the above statutes, the permission for graveyard, etc. operated by a foundation belongs to the Do's affairs. However, according to the Burial and Graveyard, etc. Act, the permission for graveyard, etc. established by a clan belongs to the Do's affairs, and according to the Local Autonomy Act and the Enforcement Decree of the same Act, the proviso of Article 8 of the Local Autonomy Act provides that "the same shall not apply to cases where other Acts and subordinate statutes prescribe otherwise." Thus, regarding the permission for graveyard, etc., it can be deemed that the provisions of the Burial and Graveyard, etc. Act are especially stipulated differently from the Local Autonomy Act, and in light of the fact that the Burial and Graveyard, etc. Act is higher than the Enforcement Decree of the Local Autonomy Act, the permission for graveyard, etc. established by a clan, etc. is interpreted as the autonomous affairs, which are the inherent affairs of the Do under

Furthermore, the above Gyeonggi-do Ordinance on the delegation of administrative affairs to the head of a Si/Gun is a delegation of agency, whether it is a delegation of agency, whether it is a delegation of organization, and the ground provisions for delegation of affairs by a local government to a subordinate local government are stipulated in Article 95 (2) of the Local Autonomy Act. The above Gyeonggi-do Ordinance on the delegation of affairs expressly provides that the ground for delegation of affairs by an agency is stipulated in Article 95 (1) of the Local Autonomy Act, which is the basis for delegation of affairs by the Do Governor. ② Article 1 of the above Ordinance on the delegation of affairs by an agency is delegated not only to the Si/Gun, but also to the head of a Si/Gun. ③ In the case of the delegation of affairs by an organization, as for the autonomous affairs of an agency, the delegated agency, as for the autonomous affairs of an agency, shall be passive, supervising the delegation of affairs by an agency, and the cancellation or suspension of the disposition shall be deemed to be necessary and appropriate in light of Article 2 of the above Ordinance on the delegation of affairs by the Do governor at least to the Gyeonggi-do Governor.

Therefore, in this case, the authority entrusted by the Governor of the Gyeonggi-do with permission for graveyard, etc. is the Yangyang-gun, not the Yangyang-gun, a local government, but the subordinate administrative agency of the Do, and because there is no ground for delegation that the head of the Si/Gun, which is an agency specially delegated by the Burial and Graveyard, or the Gyeonggi-do Ordinance on Entrustment of Affairs, may establish regulations concerning the affairs of the Si/Gun. Therefore, Article 3 of the Ordinance of this case violates the main sentence of Article 15 of the Local Autonomy Act. The plaintiff's assertion on this point is justified.

The defendant argues that even if there is no statutory delegation, determination of important matters based on the pros and cons of many residents can be the principle of democracy of sovereign citizens as stipulated in the Constitution, so the bill of this case, the main contents of which are the provision that requires the consent of 2/3 of the interested residents at the time of granting permission for the establishment of a private cemetery, etc., shall be valid even if there is no statutory delegation, but it is nothing more than its own opinion, and therefore

B. Violation of the Burial and Graveyard, etc. Act

(1) As to Article 3 of the Ordinance of this case

According to Article 117 (1) of the Constitution of the Republic of Korea and the main sentence of Article 15 of the Local Autonomy Act based thereon, local governments may enact municipal ordinances concerning their affairs within the scope of statutes.

Article 3 of the Ordinance of this case provides for the right of influence on reserved land, such as graveyards and requires the consent of at least 2/3 of residents in the sphere of influence. However, Article 8 of the Burial and Graveyard, etc. Act provides that a person who intends to establish a "private cemetery, etc." shall obtain permission from the Governor. Article 5 of the Enforcement Decree of the same Act provides that the standards for establishment of private cemetery, etc. shall be established, and Article 9 of the Enforcement Decree of the same Act provides for an area where the installation of a cemetery, etc. is prohibited, but does not provide for the consent of residents in the sphere of influence.

Since an act of establishing a private cemetery, etc. under Article 8 of the Burial and Graveyard, etc. Act shall be deemed to be a continuous discretionary act according to the criteria stipulated in Article 5(2) of the Enforcement Decree of the same Act (see Supreme Court Decision 94Nu3544 delivered on September 13, 1994). Thus, an administrative agency should not permit the establishment of a private cemetery, etc. if it satisfies the criteria stipulated in the relevant Act and subordinate statutes.

However, the legislative purpose of the Burial and Graveyard, etc. Act is to prevent harm to public health and sanitation and contribute to the efficient utilization of land and the promotion of public welfare by prescribing matters concerning the management of cemeteries (Article 1 of the above Act). Meanwhile, the legislative purpose of this case is to stipulate matters concerning the hearing of opinions of residents at the time of permission to establish cemeteries, etc. in order to prevent the collective dispersion of residents due to the dysive construction of cemeteries, such as cemeteries, using the geographical conditions of Yangyang-gun group (Article 1 of the Ordinance of this case). However, it can be deemed that the collective dispersion of residents under the Ordinance of this case is based on public health and sanitation, and therefore, the legislative purpose of the above Act and the Ordinance of this case is almost the same. Accordingly, Article 3 of the Ordinance of this case increases the new requirements for permission to establish private cemeteries, etc. under the above Act without the basis of the same or similar purpose, and therefore, Article 3 of the Enforcement Decree of the Burial and Graveyard Act and Article 15 of the Local Autonomy Act are unlawful.

(2) As to Article 7 of the Ordinance of this case

According to Article 7 (1) of the Burial and Graveyard, etc. Act, the establishment of public crematoriums is stipulated as the obligations of the Special Metropolitan City, Metropolitan City, or Si/Gun, such as the provisions of Article 7 of the Ordinance of this case, but with respect to public charnels, unlike Article 7 of the Ordinance of this case, Article 7 of the Ordinance of this case, which provides the head of the Gun with the obligation to establish the public charnels, it is different from that of Article 7 (2) of the same Act by stipulating that "the Gun may establish

As such, while imposing the head of the Si/Gun with respect to public cemeteries and public crematoriums of Article 7 (1) of the above Act, the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the provision that the public charnels should be established shall be established shall be decided on the necessity of the establishment of the public charnel shall not be universalized in our society is intended to give the head of the Si/Gun with the discretion to determine the timing and necessity of the installation. Article 7 of the Ordinance of this case goes against the legislative intent of the above Act by depriving the head of Si/Gun of the discretion to determine it, and ultimately, Article 7 of the Ordinance

Therefore, Article 7 of the Ordinance of this case is null and void because it violates Article 7 (2) of the Burial and Graveyard, etc. Act. Therefore, the plaintiff's assertion on this point is well-grounded.

4. Conclusion

Therefore, since the bill of this case, which the defendant re-decided, is in violation of the law and is null and void, 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 with the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)