[1] Whether the establishment of an ombudsman, who is a collegiate administrative agency, can be prescribed by municipal ordinance (affirmative)

[2] Whether the approval of the Minister of Home Affairs should be obtained when the local council resolves a bill of proposed legislation stipulating the establishment of a collegiate administrative agency (negative)

[3] The validity of a municipal ordinance that limits or evades the administrative monitoring and control functions of the local council, or that is entrusted to a third party's agency or a specific administrative agency belonging to the executive agency (negative)

[4] The case holding that the ombudsman system of a local government has functions and efficiency different from the central government-level institution, system, or self-system with the function of administrative monitoring and control

[5] Whether the provision of a municipal ordinance to obtain prior consent of the local council when appointing and dismissing an ombudsman member infringes on the executive organ's personnel rights (negative)

[6] The validity of the ordinances of the Ministry of Home Affairs where the ordinances were enacted without prior approval of the Minister of Home Affairs to increase the total number of local public officials under the Local Autonomy Act (negative)

[7] The case holding that the ombudsman's ordinance bill is invalid on the ground that it aims to increase the total number of local public officials under the Local Autonomy Act without a prior approval of the Minister of Home Affairs

[1] In establishing an ombudsman, who is a collegiate administrative agency, under the jurisdiction of the Do governor, who is the head of the executive agency, the head of the local government should be determined by the ordinances of the pertinent local government pursuant to Article 107 (1) of the Local Autonomy Act, and it does not require any separate grounds for establishment under the Constitution or other statutes.

[2] Article 41 of the Enforcement Decree of the Local Autonomy Act provides that "When a local government intends to establish a collegiate administrative body under the provisions of Article 107 of the Act, the approval of the Minister of Home Affairs shall be obtained except as otherwise provided in other Acts and subordinate statutes." However, this is merely merely an internal procedural provision for controlling the administrative body of the local government, and it does not appear to be a provision for restricting the voting rights of the local council. Thus, the approval of the Minister of Home Affairs concerning the establishment of a collegiate administrative body is a procedure to be taken at the stage of the enforcement of the Municipal Ordinance, and its approval is not a prerequisite

[3] Since the monitoring and control functions of the executive organ of a local government are inherent authority of the local council, if it is intended to restrict or waive the local council’s authority, or if it is intended to enact a municipal ordinance stipulating that it will be entrusted to a specific administrative organ belonging to a third institution or executive organ, it is in essence infringing on the local council’s authority, or it is null and void in violation of the local

[4] The case holding that if an ombudsman system of a local government, which allows an independent ombudsman from among the executive organs of a local government, to process residents' grievances rapidly and efficiently in accordance with local circumstances and perform monitoring and control functions on local administration, has functions and efficiency different from that on the central government level, and the ombudsman system does not stipulate that the ombudsman system is excluded from the use of the above other monitoring and control system, or is subject to ombudsman's grievance settlement due to the former conditions, but is excluded from the jurisdiction of the ombudsman, but rather, if the ombudsman system is excluded from the jurisdiction of the executive organ of an administrative appeal, lawsuit, adjudication by the Constitutional Court, constitutional complaint, request for examination by the Board of Audit and Inspection, and other procedures for objection and regulation are being in progress at the same or selective use of the system for objection and regulation on local administration at the same time as or selectively.

[5] The appointment and dismissal of all or part of the members of the executive body is not permitted in principle because the local council actively intervenes in advance in the executive body's personnel rights, but it is not allowed in principle as the head of the executive body to appoint and dismiss the members of the executive body of the local government, but it is legitimate within the scope of the right to check the executive body of the local council under the Local Autonomy Act because the local council passive interventions in the executive body's personnel rights, and is required within the scope of the right to check the executive body of the local council under the Local Autonomy Act. Thus, the local council decided to obtain the consent of the executive body upon the appointment and dismissal of the ombudsman's personnel rights cannot be deemed as

[6] The municipal ordinance that sets the fixed number of local public officials assigned to local governments shall be valid only when setting the fixed number of local public officials by the fixed number management agencies within the scope of the total fixed number of local public officials under the provisions of Article 103(1) of the Local Autonomy Act, Articles 14(1) and 21(1) of the Regulations on Administrative Organizations of Local Governments and Standards for Fixed Number of Local Public Officials, Article 3(1) [Attachment 1] of the Enforcement Rule of the Regulations on the Standards, etc. for Local Administrative Organizations and Fixed Number of Local Public Officials, and the municipal ordinance that sets the fixed number of local public officials without

[7] The case holding that, with respect to the proposal of the ombudsman's ordinance which requires a local public official of Grade IV or higher to be appointed as a full-time ombudsman, one of the executive organs, on the ground that the bill contains to increase the total number of the local public officials assigned to the local government as a result of a resolution under the conditions that the current number of the local public officials assigned to the local government exceeds the total number in accordance with the formula under the Local Autonomy Act and the Ordinance of the local government, it is null and void without obtaining prior approval from the Minister of Home Affairs

[1] Article 107 (1) of the Local Autonomy Act / [2] Article 107 (1) of the Local Autonomy Act, Article 41 of the Enforcement Decree of the Local Autonomy Act / [3] Article 36 of the Local Autonomy Act / [4] Article 107 (1) of the Local Autonomy Act / [5] Article 96 of the Local Autonomy Act / [6] Article 103 (1) of the Local Autonomy Act, Article 14 (2) of the Regulations on Administrative Organizations and Fixed Number Standards of Local Governments, Article 3 (1) of the Enforcement Rule of the Regulations on the Standards of Administrative Organizations and Fixed Number of Local Governments / [7] Article 103 (1) of the Local Autonomy Act, Article 14 (2) of the Regulations on the Standards of Administrative Organizations and Fixed Number of Local Governments, Article

[1] [1] [5] [7] Supreme Court Decision 93Do175 delivered on April 26, 1994 (Gong1994Sang, 1506) / [2] Supreme Court Decision 92Do17 delivered on June 23, 1992 (Gong1992, 2287) / [6] Supreme Court Decision 95Do56 delivered on October 15, 1996 (Gong196Ha, 349), Supreme Court Decision 96Do121 delivered on December 10, 196 (Gong197Sang, 394) / [7] Supreme Court Decision 92Da31 delivered on July 28, 1992 (Gong1992, 2575) / [196Hah decided on May 194, 1994; Supreme Court Decision 196Hah 1394 delivered on May 1964, 1994]

The Minister of Home Affairs (Attorney Choi Ho-won et al., Counsel for the plaintiff-appellant)

Cheongbuk-do Council (Attorney Jeong Young-young, Counsel for defendant-appellant)

December 20, 1996

A re-resolution on the draft of the Ordinance of the Ombudsman for Cleaning Cheongbuk-do, which was made by the defendant on September 5, 1996, shall not be effective. Litigation costs shall be borne by the defendant.

1. The process of the re-resolution of this case

On June 22, 1996, the defendant made a resolution on the proposed municipal ordinance of the Chungcheongbuk-do (hereinafter referred to as the "Ordinance of this case") on June 24, 1996, and transferred the same to the Do governor on June 13, 1996 under the direction of the plaintiff under Article 159 (1) of the Local Autonomy Act. The defendant made a request for reconsideration on September 5, 1996 to the defendant, but the defendant made a resolution on the revised bill of the Do governor's recommendation to the 2 Do governor and the 5 Do governor's request for inspection of the grievance (the 5 Do governor's request for inspection of opinions) and the 4 Do governor's request for correction of the opinion, and the 5 Do governor's request for correction of the opinion and the 4 Do governor's request for correction of the opinion of the 5 Do governor's request for correction of the opinion and the 5 Do governor's request for correction of the opinion.

2. Whether the Ordinance of this case violates the law

A. Article 107 (1) of the Local Autonomy Act provides that "a local government may establish a collegiate administrative agency under the conditions as prescribed by statutes or Municipal Ordinances of the local government concerned, when it is necessary to perform part of its affairs independently." The Ordinance of this case provides that the ombudsman shall be established under the jurisdiction of the Do governor, and three ombudsmen shall be commissioned and dismissed by the Do governor, and the ombudsman's duties shall be performed by three ombudsmen, and the ombudsman shall be reported to the Do governor and the Do Council annually. Thus, even if the ombudsman has independence and performs his duties independently, it shall not be deemed that the collegiate administrative agency belonging to the deliberative agency is an independent administrative agency under the jurisdiction of the Do governor, or that the executive agency and the deliberative agency of the local government concerned shall not be held under the jurisdiction of the Do governor (see Supreme Court Decision 100Du175, Apr. 26, 1994).

B. Article 41 of the Enforcement Decree of the Local Autonomy Act provides that "When a local government intends to establish a collegiate administrative body under the provisions of Article 107 of the Act, the approval of the Minister of Home Affairs shall be obtained except as otherwise provided by other Acts and subordinate statutes." However, this does not apply only to the internal procedural regulations for controlling the administrative body of the local government, but also to the regulations for restricting the voting rights of the local council. Thus, the approval of the Minister of Home Affairs with respect to the establishment of a collegiate administrative body is a procedure to be taken at the stage of the enforcement of the Municipal Ordinance, and its approval is not a premise that the effect of the resolution of the Municipal Ordinance of this case, which provides for the establishment of an collegiate administrative body, shall depend on the effects of the resolution of the Municipal Ordinance of this case (see Supreme Court Decision 92Ra17, Jun. 23, 192). Therefore, the Municipal Ordinance of this case cannot be deemed unlawful because it did not obtain the approval of the Minister of Home Affairs.

C. The Local Autonomy Act, as the highest decision-making body that determines the intention of a local government, establishes a local council as the executive body that supervises and supervises the affairs of the local government as the representative of the local government, separately allocates the authority of the local council and the authority of the head of the executive body as the executive body, and also allows the local council to monitor and control the affairs of the head of the organization through the inspection, investigation authority, etc. of administrative affairs, and the head of the organization to maintain mutual checks and balance by allowing the local council to act as a member of the local council in the exercise of voting rights of the local council due to the request for reconsideration of resolution of the local council. As such, since the monitoring and control functions of the executive body as to the execution of affairs of the local council are unique authority of the local council, it would infringe upon the local council's authority, and thus, it would be in violation of the Local Autonomy Act, but the Ordinance of this case is not only to monitor and control the affairs of the local council, but also to ensure the autonomy of the executive body and the executive body of the local council.

D. Although an audit office is already established under the executive organ, the executive organ performs the duty of monitoring and controlling the executive organ's affairs. Even if the Board of Audit and Inspection, the National Assembly, the National Ombudsman, the National Ombudsman, and the administrative appeals system, etc. are performing the duty of monitoring and controlling the administrative affairs above, the ombudsman system under the Ordinance of this case allows a collegiate administrative agency, among the executive organs of local governments, to promptly and efficiently deal with the conflicts of residents and to perform the duty of monitoring and controlling the local administration, so that the executive organ, who performs the duty of monitoring and controlling the national administration at the central government level, has different functions and efficiency from the one of the central government, and the Ordinance of this case does not exclude the use of the other supervisory and control system as above, or exclude the grievance handling system under the conditions of prior assignment, and thus, it cannot be viewed that the executive organ, the executive office, the Constitutional Court, the Constitutional Court's request for examination by the Board of Audit and Inspection, and other procedures for objection and regulation, which are under the jurisdiction of the executive organ, as well as the one of the executive secretary, etc.

E. The appointment and dismissal of all or part of the members of the executive body is not permitted in principle because the local council actively intervenes in the executive body's personnel rights in advance. However, the appointment and dismissal of the members of the executive body shall be made by the head of the executive body, but the appointment and dismissal of the members of the local council shall be made by the local council, which is a passive intervention in the executive body's personnel rights, and is required within the scope of the authority to check to the executive body of the local council as provided by the Local Autonomy Act (see Supreme Court Decision 93Do175, supra). Thus, it cannot be said that the Ordinance of this case violated the executive body's personnel rights, thereby violating the purpose of separation and distribution between the deliberative body and the executive body as provided by the Local Autonomy Act. This part of the plaintiff's assertion is without merit.

(f) Article 103(1) of the Local Autonomy Act provides that the fixed number of local public officials assigned to the local government shall be determined by the Municipal Ordinance of the local government concerned in accordance with the criteria prescribed by the Presidential Decree. Articles 14(1) and 21(1) of the Regulations on the Standards, etc. for Administrative Organizations and Personnel of the local government so subjected to the above provision shall be prescribed by the Municipal Ordinance of the local government concerned within the total fixed number calculated by the formula prescribed in Article 3(1) and [Attachment 1] of the Enforcement Rule of the Local Autonomy Act. Article 103(2) of the Local Autonomy Act provides that the fixed number of local public officials assigned to the local government shall be determined by the Municipal Ordinance of the local government concerned within the scope of the fixed number calculated by the formula prescribed in Article 3(1) and [Attachment 1]. Article 14(2) of the Local Autonomy Act provides that the fixed number of local public officials assigned to the local government shall be determined by the Ordinance of the Ministry of Home Affairs in excess of the fixed number of the fixed number of local public officials.

3. Conclusion

Therefore, as long as Article 9(5) of the Ordinance of this case violates the above Local Autonomy Act and is unlawful, as long as some provisions of the Ordinance of this case are unlawful, the re-resolution of the Ordinance of this case shall be denied in its entirety. Therefore, the plaintiff's claim 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 who

Justices Park Jong-ho (Presiding Justice)