2012Guhap3172 Revocation, such as a resolution to appoint a Chairperson

leap00

Attorney Kim Jae-in, Counsel for the defendant-appellant

Daejeon Metropolitan Universal Council;

The representative of the Council shall be the chairperson of the Council.

Attorney Seo-sikng, Counsel for the defendant-appellant

October 31, 2012

November 28, 2012

1. The resolution that the Defendant elected as the Defendant’s Speaker is revoked * the resolution that the Defendant elected as the Defendant’s Speaker, July 12, 2012.

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

The order is as set forth in the text.

1. Details of the resolution on the withdrawal of the Speaker;

A. At the 183 extraordinary session held on June 29, 2012, the Defendant Council elected the Plaintiff as the chairman of the 6th second half of the Defendant Council.

B. On July 6, 2012, at the first plenary session of the Defendant Council’s 183th regular session, the Defendant Council proposed a resolution of non-Confidence for the following reasons (hereinafter “the resolution of non-Confidence”), and as a result, the Defendant Council made a resolution of non-Confidence for the Plaintiff with the consent of the majority of the incumbent members 8 and one invalid one (hereinafter “the resolution of non-Confidence”). (1) The Defendant Council made a resolution of non-Confidence for the Plaintiff with the consent of the majority of the incumbent members 10).

2) After winning the Speaker, the Council made it a direct circuit without performing the chair (hereinafter referred to as “non-Confidence 2”).

3) The words that were revealed after the process of the election of the Speaker and the election are considered to be morally unreasonable in carrying out the chairing position representing 300,000 U.S. residents (hereinafter referred to as “non-Confidence 3”).

C. On July 12, 2012, the Defendant Council opened the third plenary session of the 183 regular session with the presence of 00 members, a Vice-Speaker, and passed a resolution of non-Confidence in this case, under the premise that the resolution of non-Confidence in this case is legitimate.* A resolution was made to select the members as a new chairperson of the Defendant Council as the new chairperson of the Defendant Council (hereinafter referred to as “decision on the appointment of the Speaker in this

2. Whether the resolution on the withdrawal of the design of this case is legitimate

A. The plaintiff's assertion

The non-Confidence resolution of this case is unlawful in the following procedural and substantive defects. Thus, the non-Confidence resolution of this case, which was made on the premise that the non-Confidence resolution of this case is legitimate, shall also be revoked in an unlawful manner.

1) The instant non-Confidence resolution was an unfavorable disposition to deprive the Plaintiff of his/her chair, but was made without prior notification to the Plaintiff, and the Plaintiff did not have the opportunity to vindicate the causes of non-Confidence. Such procedural defect is unlawful.

B) The instant resolution was not indicated in the agenda items for which the non-Confidence was not notified in advance to the members, and the standing committee did not go through the proposal explanation, questioning and debate, and was passed without any discussion. This was unlawful as it was a procedural defect in violation of Articles 16, 20, and 25 of the Rules of the Defendant Council’s Meeting.

2) substantive defect.

The grounds for non-Confidence No. 1 cannot be the grounds for non-Confidence, and the grounds for non-Confidence No. 3 shall not be the grounds for non-Confidence, because their contents are abstract. In the case of the grounds for non-Confidence No. 2, the Plaintiff’s election from the date the Plaintiff was elected as the Speaker, and one week after the date the Plaintiff was elected as the Speaker, but the Council was not operated properly, and the reason was that the Plaintiff obstructed the plenary session, which was trying to be held on July 2, 2012 from the 00 members of the right which was not elected as Vice-Speaker, and the number of members did not reach the quorum for the intention on July 3, 2012, it cannot be deemed that the Plaintiff made the Defendant Council’s plant circuit by failing to perform his duties. Accordingly, the non-Confidence resolution in this case is unlawful without justifiable grounds for non-Confidence.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination on the legitimacy of the non-Confidence resolution of this case

1) Determination as to the assertion that there was no prior notice and the opportunity to vindicate the procedural defect

In this regard, Article 3 (2) 1 of the Administrative Procedures Act provides that the Administrative Procedures Act shall not apply to "matters subject to prior notice or approval by the National Assembly or a local council." Although the non-Confidence resolution of this case is a kind of administrative disposition that deprives the plaintiff of his/her authority as the chairperson (Supreme Court Order 94Du23 Decided October 11, 1994), it constitutes a resolution of the local council itself and constitutes a case where the application of the Administrative Procedures Act is excluded in light of the purport of the above provision. Thus, the prior notice of Article 21 of the Administrative Procedures Act and the hearing of opinions under Article 22 of the Administrative Procedures Act shall not be applied, and there is no legal ground for the argument that the defendant Council should have provided the plaintiff with an opportunity to give prior notice and vindication in the resolution of non-Confidence of this case. Thus, this part of the plaintiff's assertion is without merit.

B) Determination on the assertion that the Defendant Council violated the meeting rules

Article 71 of the Local Autonomy Act provides that local councils shall prescribe necessary matters concerning the operation of meetings in addition to those prescribed by this Act, and the rules of meetings of the defendant Council established by delegation (hereinafter referred to as the "Rules of meetings") stipulate matters necessary for the progress of meetings of the defendant Council.

Specifically, Article 16 (1) of the Meeting Rules provides that "the Speaker shall prepare the agenda items for the opening date and time, and distribute it to the Council members in advance." Article 17 provides that "If the plenary session adopts a resolution with the consent of at least 1/5 of all incumbent National Assembly members or the Speaker deems it necessary, other agenda items may be added to the agenda items." Article 20 (1) provides that when a bill is proposed or submitted, the Speaker shall print and distribute it to the Council members and report it to the plenary session, and it shall be referred to the plenary session after the deliberation is completed, and Article 25 (1) provides that "the plenary session shall hear the proposer's explanation of the purpose in deliberation of the bill and vote after questioning and debate: Provided, That with respect to an agenda item on which a report on the examination of the committee has been made, a vote may be omitted by resolution after hearing a report of the chairperson and questioning and debate, but it may be omitted."

The principle of majority in democracy is justifiable in that it makes decisions by the local council, which is the head of realizing democracy, has the most important meaning in the process and procedure in which the members of the local council hear the explanation of the proposal on the agenda and draw an agreement through sufficient inquiries and discussions. Therefore, if a resolution by the local council violates the above procedures prescribed by the meeting rules, the resolution shall be deemed unlawful.

As to this case, the following circumstances, which can be acknowledged by adding the whole purport of arguments to the statements in the 1, 2, 3, and 5-1 and 2 of evidence Nos. 2, i.e., ① the agenda of the 183 regular meeting of the defendant Council, which is not included in the resolution of the No. Confidence in this case as the agenda to be discussed at the first plenary session. ② Nevertheless, the 183 regular meeting held on July 6, 2012, without going through the procedures for adding the resolution of the No. Confidence in this case to the agenda in accordance with Article 17 of the Rules of the 183 regular meeting, the 5th regular meeting of the defendant Council did not have the capacity to refer to the resolution of the No. Confidence in this case to the 6th regular meeting without the explanation of the proposed No. Confidence in this case, the 6th regular meeting's explanation of the proposed No. Confidence in this case to the 196th regular meeting.

2) Determination on the assertion of substantive defects

Article 55 (1) of the Local Autonomy Act provides that "If the chairperson or vice-chairperson of a local council violates Acts and subordinate statutes or fails to perform his/her duties without justifiable grounds, a local council may pass a resolution of non-Confidence." On the other hand, Article 49 of the Local Autonomy Act provides that "the chairperson of a local council shall represent the local council, coordinate its proceedings, maintain order in the meeting of the local council, and supervise the affairs of the council." Thus, the grounds for non-Confidence for the chairperson referred to in Article 55 (1) of the Local Autonomy Act refers to a case where he/she violates Acts and subordinate statutes or fails to perform his/her duties

Each cause of the non-Confidence resolution of this case shall be examined as to whether the cause of the non-Confidence resolution of this case constitutes a legitimate cause of non-Confidence under Article 55 (1) of the Local Autonomy Act.

If the purport of the whole pleadings is added to the statements and images of evidence Nos. 1, 2, 3, and 3-2 of evidence Nos. 1-2, the plaintiff may recognize the facts that the plaintiff recommended several members to hold office as Vice-Speakers and requested support during the election process of the Speaker. This seems to have been an act that could not be morally criticized as a member of the local council elected with the people's support. However, it cannot be deemed to constitute a violation of any statute in the course of performing his duties as the Speaker or a failure to perform his duties without any justifiable reason. Thus, the grounds of No. 1 cannot be deemed to constitute legitimate grounds of No. Confidences.

B) Determination of No. 2

The facts that Defendant Council was unable to properly operate from July 2, 2012 to July 6, 2012 are not disputed between the parties. On the other hand, if the purport of the entire pleadings is added to evidence Nos. 3-1, 2, 3 and 4, ① in an election for which the Plaintiff was elected as the Vice-Speaker from June 183, 2012, the number of members 00 and 4 were elected as Vice-Speaker (the Plaintiff was authorized to go to go to the Plaintiff, and the Plaintiff did not appear to go to go to the Plaintiff from 200 p.m. 20 p. 7 p.m. to 20 p.m. 7 p.m. 20 p.m., the Plaintiff failed to go to hold a meeting from 20 p.m. to 20 p.m. 20 p.m., the Plaintiff did not appear to have been responsible for holding a meeting again by 00 p.m. 20 p.m.

C) Judgment of No. 3

No. 3 is unclear as to what kind of words and acts of the plaintiff, and if it is about the part pointed out in No. 1 and No. 2, it cannot be viewed as an independent non-Confidence ground. Thus, it cannot be a legitimate ground for non-Confidence resolution.

D) Ultimately, the grounds for the instant non-Confidence resolution cited by the Defendant Council cannot be deemed to constitute a justifiable ground for non-Confidence resolution under Article 55(1) of the Local Autonomy Act. Thus, the instant non-Confidence resolution of the Defendant Council is unlawful substantially. The Plaintiff’s assertion on this part is well-grounded.

D. Determination as to the legitimacy of the resolution on the withdrawal of the Speaker of this case

Since the resolution on the appointment of the Speaker of this case was made on the premise that the non-Confidence resolution of this case is legitimate, so long as the non-Confidence resolution of this case should be revoked as illegal, the resolution on the appointment of the Speaker of this case shall also be revoked as unlawful. The plaintiff's assertion on this part is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Kim Jong-ri

Judges Kang Jin-hee

Judges Jeon Jae-il

1) Article 49 of the Local Autonomy Act provides for the duties of the Chairperson, and Article 55 of the Local Autonomy Act provides for the non-Confidence resolution

As a result, the 00 member seems to have made an erroneous statement on the ground of the non-Confidence resolution.