[1] The meaning of "within the scope of a statute" under Article 15 of the Local Autonomy Act, and the validity of a case in violation of a statute enacted by a local government (negative)

[2] The purport of Article 13-2 of the Local Autonomy Act

[3] The case holding that since it is apparent that the relocation of a military unit is not a matter that can be decided by the authority of the head of a local government, it cannot be a resident referendum under Article 13-2 of the Local Autonomy Act

[4] Whether a bill of municipal ordinance, which stipulates that a local council shall conduct a local referendum within a certain period of time, violates the laws and regulations as violating the head of the local government's inherent authority (affirmative)

[1] The main sentence of Article 15 of the Local Autonomy Act provides that "the local government may enact municipal ordinances concerning its affairs within the scope of statutes." Since the term "within the scope of statutes" refers to the scope that does not violate the laws and regulations, it shall not be effective where the ordinances enacted by the local government violate the laws and regulations.

[2] According to the provisions of Article 13-2 of the Local Autonomy Act, the head of a local government is not allowed to attach all or some of the matters to the residents' voting, but limited to the major decisions of a local government that may excessively burden the abolition, division, or merger of a local government, or have a significant impact on residents. The purport of the above provision is to determine matters that the head of a local government may have with his/her authority by asking the residents' opinions to be attached to the residents' voting and to reflect them in administration.

[3] The case holding that since it is apparent that the relocation of a military unit is not a matter that can be determined by the authority of the head of a local government, it cannot be subject to the residents' voting under Article 13-2 of the Local Autonomy Act

[4] The Local Autonomy Act grants independent authority to the head of a local council and the head of a local government and is in balance with each other. Thus, barring any special provision in law, there may not be a provision that infringes on inherent authority beyond the scope of checks by ordinances. According to Article 13-2 (1) of the Local Autonomy Act, even if the matter is subject to the local referendum, it is evident that whether to implement the local referendum is at the discretion of the head of a local government. Thus, the Ordinance that stipulates that the local council shall carry out voting within a certain period of time is in violation of the provisions of the Act that provide that the local council shall decide whether to carry out the voting at the discretion of the head of a local government.

[1] Article 15 of the Local Autonomy Act / [2] Article 13-2 of the Local Autonomy Act / [3] Article 13-2 of the Local Autonomy Act / [4] Articles 13-2, 15, 35, and 94 of the Local Autonomy Act

[1] Supreme Court Decision 200Da29 decided Nov. 24, 200 (Gong2001Sang, 167) / [4] Supreme Court Decision 93Da175 decided Apr. 26, 1994 (Gong1994Sang, 1506) decided May 14, 1996 (Gong1996Ha, 1893), Supreme Court Decision 200Da36 decided Nov. 10, 200 (Gong2001Sang, 50) decided Dec. 11, 2001 (Gong2002Sang, 308)

Head of Bupyeong-gu Incheon Metropolitan City (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Bupyeong-gu Incheon Metropolitan Council (Attorney Seo-ho et al., Counsel for the defendant-appellant)

April 12, 2002

1. The re-resolution of the Bupyeong-gu Incheon Metropolitan City Ordinance on the Residents' Voting for Relocation of Military Units on January 29, 2002 by the defendant is invalid.

2. The costs of lawsuit shall be borne by the defendant.

1. Re-resolution of the Ordinance of this case and a summary of its contents

The following facts can be acknowledged in full view of the whole purport of the pleadings in the statement of Gap evidence 1-1 to Gap evidence 5-1.

A. On December 18, 2001, the Defendant passed a resolution of the Bupyeong-gu Incheon Metropolitan City Ordinance on the Residents' Voting for Relocation of Military Units (hereinafter referred to as the "Ordinance of this case") and transferred it to the Plaintiff. On January 5, 2002, the Plaintiff demanded the reconsideration according to the Incheon Metropolitan City Ordinance of this case on the ground that the Ordinance of this case violated the relevant provisions of the Local Autonomy Act, but the Defendant re-resolutioned the Ordinance of this case as the original bill on January 29, 2002, and thus, the Ordinance of this case was finalized and promulgated.

B. The purpose of the Ordinance of this case is to clarify the opinions of Gu residents on the relocation of the US military unit stationed in Bupyeong-gu Incheon Metropolitan City and to properly reflect the results thereof in the Government of the Republic of Korea and the Government of the United States (Article 1). The plaintiff shall hold Gu residents voting within 150 days from the date of its promulgation of this Ordinance and reflect the residents' free will (Articles 2 and 4(1)), and shall establish the Gu residents voting management committee within 30 days from the date of its promulgation for fair voting management (Article 3(1) and appoint members of the voting management committee (Article 3(2)), and shall immediately notify the members of the voting management committee of the contents thereof (Article 11(2)), and shall immediately notify the Government of the Republic of Korea and the Government of the United States of the result thereof (Article 4(2)), and the holder of the voting rights shall put a mark in the column of "constition," and shall directly put the result in the ballot box to the Government of the Republic of Korea until the date of its promulgation.

2. Whether the Ordinance of this case violates the law

A. The main sentence of Article 15 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances with regard to their affairs within the scope of statutes." Since "within the scope of statutes" refers to "within the scope of statutes", it shall not be effective in cases where municipal ordinances enacted by local governments violate laws and regulations.

B. Therefore, we examine whether the Ordinance of this case violates the legislation.

Article 13-2(1) of the Local Autonomy Act provides that "the head of a local government may attach a local government's major decisions, etc. which may impose an excessive burden on residents or have a significant impact on residents," and Article 13-2(2) provides that "the objects, proposers, requirements for proposal, other voting procedures, etc. of the local government shall be separately prescribed by other Acts." According to the above provision, the head of a local government is not allowed to attach any matter or all to the local referendum, but limited to the matters, such as the abolition, establishment, division, or merger of a local government, or the major decisions of a local government that may have an excessive burden on residents or have a significant impact on residents, so that he/she may attach a local government's own decision to the local referendum. The purport of the above provision is to stipulate that the relocation of military units subject to the local referendum under the Ordinance of this case is clear that the plaintiff is not able to decide by his/her authority, and thus, it cannot be subject to the local referendum under the above provision.

On the other hand, since the Local Autonomy Act grants independent authority to the local council and the heads of local governments and maintains mutual checks and balance, there shall not be any provision that infringes on inherent authority beyond the scope of checks by municipal ordinances unless otherwise expressly provided for in law (see, e.g., Supreme Court Decision 96Do15, May 14, 1996). According to Article 13-2 (1) of the above Local Autonomy Act, even if matters subject to the local referendum are subject to the local referendum, the issue of whether to implement the local referendum is left at the discretion of the head of local government.

However, according to the Ordinance of this case, the plaintiff shall conduct the residents' voting within 150 days from the date of its promulgation (Articles 2 and 4(1)). This is against the legal provision that allows the local council to decide whether to conduct the voting as the discretion of the head of the local government, so that the local council has to conduct voting without fail on specific matters prescribed by the Ordinance, and thus, it infringes on the inherent authority of the head of the

C. If so, at least part of the Ordinance of this case is illegal and if so, the re-resolution of the Ordinance of this case should be denied in its entirety. Therefore, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution is with merit without any need to further examine the remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim is accepted, and the costs of lawsuit are assessed against the defendant who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)