[1] Whether it is permissible for a local council to propose an ordinance on the establishment of a collegiate administrative agency and make a resolution and re-resolution (negative)

[2] Whether the local council can exercise the right of personnel of the executive organ independently or by agreement as equal to that of the executive organ, and whether it is allowed to actively intervene in advance (negative)

[3] The case holding that since the "Ordinance on the Establishment and Operation of the Research Committee of Jeju Special Self-Governing Province" proposed by the Jeju Special Self-Governing Province Council and passed a resolution and re-resolution is unlawful in violation of the law, the re-resolution of the Ordinance is invalid

[1] Under the Local Autonomy Act, the executive organs and local councils of local governments are separated into each other and exercise their own authority within the scope of mutual checks, but the local council is not allowed to actively intervene in the exercise of the other party's authority within the scope of checks, but it is not allowed to actively intervene in the exercise of the other party's own authority. In addition, Article 116 of the Local Autonomy Act provides that the collegiate administrative agencies established as the basis for the establishment of the local government share part of the affairs of the local government under the supervision and management of the head of the local government, and carry out such affairs independently, they are not belonging to the local council or belong to the third party independent agencies that do not belong to the executive agencies or belong to the local council. In light of Article 3 (1) of the Regulations on the Administrative Organizations and Standards for the Fixed Number of Personnel of the local governments, the head of the local government has the inherent authority to establish the administrative agencies belonging to the executive agencies and actively intervene in the establishment of the local council, and thus, it does not include a prior resolution of the local council.

[2] The local council is allowed to intervene passive and ex post facto within the scope of checks on the personnel rights of the executive organ, but it is not allowed to exercise the personnel rights of the executive organ or to actively intervene in such rights in advance.

[3] The case holding that the "Ordinance on the Establishment and Operation of the Research Committee of Jeju Special Self-Governing Province" proposed and resolved by the Jeju Special Self-Governing Province Council is invalid since it actively interveneds in advance in the matters belonging to the unique authority of the Governor of Jeju Special Self-Governing Province and personnel rights, and part of it is unlawful in violation of the laws and regulations.

[1] Articles 22, 39, 101, 103, 112, and 116 of the Local Autonomy Act / [2] Articles 22, 39, 101, 103, and 112 of the Local Autonomy Act / [3] Articles 22, 39, 101, 103, 112, and 116 of the Local Autonomy Act

[1] Supreme Court Decision 2001Da64 decided Dec. 11, 2001 (Gong2002Sang, 308) Supreme Court Decision 2005Da48 decided Aug. 19, 2005 (Gong2005Ha, 1517) / [2] Supreme Court Decision 93Da175 decided Apr. 26, 1994 (Gong194Sang, 1506)

Do Governor of Jeju Special Self-Governing Province (Law Firm Maritime Name, Attorneys Jjin-jin et al., Counsel for the defendant

Jeju Special Self-Governing Province Council (Attorney Park Ho-hoon, Counsel for defendant-appellant)

1. The defendant's re-resolution on the "Ordinance on the Establishment and Operation of the Jeju Special Self-Governing Province Research Committee" made on February 25, 2009 shall not be effective.

2. The costs of the lawsuit are assessed against the defendant.

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

The following facts may be acknowledged in light of the overall purport of the pleadings in each of the statements Nos. 1-1, 2, 2-1, 2-2, and 2-1, and 2-2.

A. On December 24, 2008, the Defendant passed a resolution on the “Ordinance on the Establishment and Operation of the Research Committee of Jeju Special Self-Governing Province” (hereinafter “Ordinance”) proposed by the member affiliated with the Defendant, and transferred it to the Plaintiff. On January 9, 2009, the Plaintiff demanded its reconsideration to the Defendant on the ground that the Ordinance Ordinance was in violation of the statutes. However, the Defendant re-resolutiond the Ordinance Ordinance on February 25, 2009.

B. Under Article 116 of the Local Autonomy Act and Article 79 of the Enforcement Decree of the same Act, the Ordinance of this case was enacted for the purpose of establishing the Research Committee of the Jeju Special Self-Governing Province (hereinafter “the Research Committee of this case”) in order to evaluate the overall operation status of the Jeju Special Self-Governing Province and to prepare a reasonable and realistic development plan (Article 1). The Research Committee of this case shall be established under the jurisdiction of the Plaintiff and shall have independent status in its duties (Article 2). The Committee shall be composed of 11 researchers, including one chairperson, who shall be appointed from among the research members (Article 3(1)), five researchers shall be commissioned by the Plaintiff with the consent of the Defendant (Article 3(2)); the two researchers shall be recommended by the Defendant; the measures of strengthening the status of the Jeju Special Self-Governing Province; the measures of strengthening the status of the Jeju Special Self-Governing Province; the review of whether the decision-making agency and the executive organ conflict structure; the measures to revitalize the resident participation system; and the staff shall be appointed by the Plaintiff and its local public officials (Article 17).

2. Whether the Ordinance of this case violates the law

A. Whether the Ordinance of this case infringes the plaintiff's right to propose the bill

The executive organs and local councils of local governments under the Local Autonomy Act are separated from each other to exercise their own authority, but it is allowed to participate in the exercise of the other party's authority within the scope of mutual checks. However, the local council may intervene passive and ex post facto within the scope of checks with respect to the exercise of the authority belonging to the executive organs (see Supreme Court Decision 2001No. 64, Dec. 11, 2001). Furthermore, in full view of Articles 101, 103, 112, and 127 of the Local Autonomy Act, Articles 5, 7, and 36 (2) of the Regulations on Administrative Bodies and Standards for the Fixed Number of Local Governments (hereinafter referred to as the "Rules on Administrative Organizations"), and the Local Autonomy Act requires the head of local government to establish an administrative body within the scope of 100,000, and to propose that the head of local government establish an administrative body within the scope of 205,000,000 won.

In addition, in light of Article 116 of the Local Autonomy Act, a collegiate administrative agency, in which the grounds for the establishment of a collegiate administrative agency are established, shall be an agency that the head of a local government takes charge of part of the affairs of a local government that takes charge of, manages and executes the affairs of a local government, and independently performs such affairs, even if the agency belongs to the local council or does not fall under an independent third agency that does not belong to the enforcement agency or the local council. In light of Article 3(1) of the Administrative Organization Regulation, it is interpreted that the head of a local government has the right to organize the overall administrative agency that belongs to the executive agency, the head of a local government shall have the inherent authority to establish the collegiate administrative agency, and such inherent authority shall include the right to propose an Ordinance for the establishment of a collegiate administrative agency. Thus, a resolution and re-resolution by the local council by proposing the Ordinance for the establishment of a collegiate administrative agency shall not

In light of the above legal principles and the facts as seen earlier, the Defendant proposed and resolved the Ordinance of this case to establish the Research Committee under Article 116 of the Local Autonomy Act as an collegiate administrative agency to which the Plaintiff belongs based on Article 116 of the Local Autonomy Act, and re-decided the Plaintiff’s demand for reconsideration thereof as it is is constitutes a violation of the laws and regulations, since it actively participated in advance and infringes on the exercise of

The plaintiff's assertion on this is justified.

B. Whether the Ordinance of this case infringes upon the Plaintiff’s inherent authority of policy decision making right

According to the above facts of recognition, the research committee of this case established and operated by the Ordinance of this case is required to conduct research for evaluating the overall operation status of Jeju Special Self-Governing Province and preparing a reasonable and realistic development plan, but it is merely to conduct research on the plan, not to determine the policies on the development plan of Jeju Special Self-Governing Province, and it is also conducted as an institution belonging to the plaintiff, and it is also conducted as an institution to which the plaintiff belongs, and it is required to report the results to the superintendent of education of the original and the defendant and the Jeju Special Self-Governing Province,

Therefore, it is difficult to see that the Ordinance of this case grants the right to policy-making on the development plan of Jeju Special Self-Governing Province to the Research Committee in violation of the current principle of local autonomy that adopts the structure of the institution substitute structure, or thereby actively intervene in the exercise of the Plaintiff’s inherent authority. The Plaintiff’s assertion on

C. Whether the Ordinance of this case infringes upon the Plaintiff’s personnel rights

The local council is allowed to intervene passive and ex post facto within the scope of checks on the right to personnel management of the executive organ, but it is not allowed to independently exercise the right to personnel management of the executive organ or to actively intervene in advance in such right in principle (see Supreme Court Decision 93Da175, Apr. 26, 1994, etc.). In light of these legal principles and facts as seen earlier, the research committee of this case is authorized to conduct research on the development plan of the Jeju Special Self-Governing Province, which belongs to the affairs of Jeju Special Self-Governing Province. Thus, it is clear that the plaintiff who is ultimately responsible for the research committee of this case has the right to personnel management of the research committee of this case, and therefore, Article 3 (2) of the Ordinance of this case provides that five of eleven members of the research committee of this case who are recommended by the defendant, among the eleven members of the research committee of this case, is illegal as it is required for the local council to actively intervene in the executive organ of this case in advance, but Article 3 (1) of the Ordinance of this case.

Meanwhile, the head of a local government, the general executive agency of a local government, and the Superintendent of an Office of Education of a local government, the special executive agency of education on education and arts, respectively, have the unique personnel rights based on Article 105 of the Local Autonomy Act and Article 20 of the Local Education Autonomy Act, and thus, it is unlawful to allow them to participate in the personnel rights of each other by Municipal Ordinance, barring any special circumstance. Therefore, Article 3(2) of the Ordinance of this case provides that two of the members of the Research Committee of this case who are recommended by the Superintendent of an Office of Education of Jeju Special Self-Governing Province shall actually exercise the Plaintiff’s personnel rights jointly with the Superintendent of an Office of Education, thereby allowing the Plaintiff to participate in the research committee of this case

In addition, Article 15 of the Ordinance of this case provides that employees belonging to its secretariats shall be appointed upon the recommendation of the chairperson of the Research Committee of this case, not to necessarily appoint the person recommended by the plaintiff, but to interpret that the final decision on whether to appoint them may still be exercised by the plaintiff. In light of the fact that the Research Committee of this case is an administrative agency that needs to perform its duties independently from the plaintiff, it is difficult to deem that it is an illegal regulation that

Therefore, the plaintiff's assertion that the Ordinance of this case infringes the plaintiff's personnel rights is justified only under Article 3 (2) of the Ordinance of this case, and the remainder is without merit.

D. Whether the Ordinance of this case violates the requirements for the establishment of a collegiate administrative agency

In light of the purpose of the establishment of the research committee of this case as stipulated in the Ordinance of this case and the contents and nature of the research committee of this case, where high level of expertise is requested, where neutral and fair execution is needed, it is recognized that the reflection of residents' intentions and adjustment of interests is necessary, and that it is necessary to independently perform such research work is limited to securing independent performance of such research work through the establishment and operation of a simple advisory agency. Thus, the establishment of the research committee of this case as a collegiate administrative agency cannot be deemed to violate the requirements for the establishment of a collegiate administrative agency under Article 116 of the Local Autonomy Act and Article 79

The plaintiff's assertion on this is without merit.

E. Whether the Ordinance of this case violates the grade criteria of administrative body

In light of the facts acknowledged earlier and the provisions of the relevant Acts and subordinate statutes, the Audit Committee and the Local Labor Relations Commission of Jeju Special Self-Governing Province, which set the standards for the position of the assistant or assistant in accordance with Article 12(1) [Attachment 7] of the Administrative Organization Regulations, are an agreed administrative agency that differs from the research committee of this case in terms of the purpose of its establishment, characteristics of affairs, and contents. Thus, the standard for the position of the employees of the Research Committee of this case does not have to be set in accordance with the above [Attachment 7], and there is no circumstance to deem otherwise that the standard for the position of the employees of the Research Committee of this case as stipulated in the Ordinance of this case violates

The plaintiff's assertion on this is without merit.

3. Conclusion

Therefore, the Ordinance of this case is unlawful in violation of the law, and in this case, the re-resolution of the Ordinance of this case is denied in its entirety. Thus, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution of the Ordinance of this case is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition with the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)