(영문) 인천지방법원 2015.9.24.선고 2015구합299 판결

The first preliminary claim: The dismissal of the plaintiff's residents' autonomous council members under Article 21 subparagraph 4 and 5 of the Gangnam-gu Incheon Metropolitan City Ordinance on the Establishment and Operation of the residents' autonomous council shall be confirmed to be null and void.

The second preliminary claim: The defendant shall confirm that the plaintiff is a resident autonomous member of the Dongdaemun-gu Incheon Metropolitan City, Dongdaemun-gu, Incheon Metropolitan City.

Reasons

1. Details of the disposition;

A. On May 14, 2012, the Plaintiff was commissioned as the residents' autonomous council member of the Dong-gu Incheon Metropolitan City, Chungcheongnam-gu, Incheon Metropolitan City (auditor) for a two-year term of office, and was reappointed on May 14, 2014.

B. On December 23, 2014, the Defendant notified the Plaintiff of the purport that he/she will be dismissed from the member of the residents' autonomous council on December 23, 2014 pursuant to Article 20(1)4 and 5 of the Gangnam-gu Incheon Metropolitan City Ordinance on the Establishment and Operation of the residents' autonomous council (amended by Ordinance No. 1244, May 15, 2015; hereinafter referred to as the "Ordinance of this case") (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 12, the purport of the whole pleadings

2. Determination on the main defense of this case

A. The defendant's assertion

A member of the Residents' Self-Governing Committee is merely a party to a contractual relationship under public law, and the instant disposition is not a disposition subject to appeal litigation.

B. Determination

1) The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally, and in specific cases, an administrative disposition is an act that directly affects the rights and obligations of the people as an enforcement of the law with regard to a specific fact committed by an administrative agency as the subject of public authority. In view of the content and purport of the relevant Act and subordinate statutes, the subject, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration under the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see Supreme Court Decision 2013Du7834, Apr. 24, 2014, etc.).

2) According to Article 20 of the Ordinance of this case, the head of the Dong may dismiss a residents' autonomous council member even before his/her term of office, if any of the grounds prescribed in the above provision exist. However, in light of the provisions of this case concerning the dismissal as above, the dismissal of a residents' autonomous council member cannot be deemed to be termination of a delegation contract under public law in equal status with the head of the Dong and the residents' autonomous council member, and the head of the Dong shall be deemed to be an action to deprive the residents' autonomous council member of his/her status as a public authority, and thus constitutes a disposition subject to appeal litigation.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to the instant Municipal Ordinance and the operating rules of the Gangnam-gu Incheon Metropolitan City Residents' Self-Governing Center (hereinafter referred to as the "Operational Rules"), in order to dismiss the residents' self-governing council members, the instant disposition is unlawful as it has been subject to deliberation by the Committee, which has been illegally convened by violating the procedures for convening the Committee and convening the notice of convening the Committee.

2) Although there was some conflict between the members dismissed from the instant disposition and the Defendant in the course of performing their duties, there was no act contrary to the operation of the Autonomous Center, or there was no neglect of duties, and thus, the instant disposition was unlawful as it did not exist any grounds for disposition.

(b) Related statutes;

As shown in the attached Form.

C. Determination

1) According to Article 20 (1) of the Ordinance of this case, the head of the Dong may dismiss a resident autonomy member through the deliberation of the committee (Article 21 (1), (2), and Article 24 of the Ordinance of this case, and Article 16 of the Enforcement Rule of this case, if he/she commits an act contrary to the purpose, purpose, function, etc. of the self-governing center (Article 20 (4)), or if he/she neglects his/her duties or deems it difficult to perform his/her duties as a member or adviser, he/she may dismiss him/her. In addition, according to Article 21 (1), (2), and Article 24 of the Ordinance of this case and Article 16 of the Enforcement Rule of this case, the meeting of the committee shall be divided into regular meetings and extraordinary meetings, and if he/she intends to call a meeting of the committee, he/she shall notify in writing the member of the date, place, agenda, main contents, etc

2) If evidence Nos. 1 through 9 (including numbered items) and Nos. 1 through 19 (numbered items) are combined with the following facts that can be acknowledged by comprehensively considering the overall purport of the pleadings, the committee called for the instant disposition was conducted in violation of the convening authority and convening procedures as prescribed by the instant Municipal Ordinance, and there is no inevitable circumstance to deem that the Plaintiff constitutes a ground for dismissal as prescribed by Article 20(1)4 and 5 of the instant Municipal Ordinance. Accordingly, the instant disposition is unlawful because it fails to meet the procedural requirements and the substantive requirements, and thus must be revoked.

(1) Some members of the residents' autonomous council among 24 members of the residents' autonomous council from around October 2014, which conflict with the employees of the defendant and the community service center due to the expenditure of the operation fund of the community service center from around December 2014.

The former had been.

② On December 22, 2014, the Defendant requested 11 members of the residents’ self-governing council, excluding three advisers and ten members of the residents’ self-governing council, including the Plaintiff, from among 24 members of the residents’ self-governing council around 24 p.m. on the same day, to attend the meeting via telephone. While the chairperson of the 11 member of the residents’ self-governing council who was notified of the same day was present at the 11 member, three members of the 3 member of the residents’ self-governing council were retired from the meeting, and the remaining six members of the residents’ self-governing council were holding a meeting to dismiss the

③ The above committee was convened by the defendant, who is not the chairperson, who is not the person entitled to convene a meeting, and there was no prior notification to the residents' autonomous members of the date, time, place, agenda, major contents of the meeting, etc., and there was no notification to the chairperson in writing. The guidance to hold an urgent temporary meeting to dismiss the residents' autonomous council members (Evidence B No. 3) is written later, and it is not a document issued to the residents' autonomous council members.

④ The details of the reasons why the Defendant seems to unilaterally prepare for the dismissal of the residents' autonomous council members (Evidence B No. 5) include that the Plaintiff questioning the Plaintiff as the reasons why the Plaintiff was dismissed as the head of Dong, leading the Plaintiff to a criminal act by inciting the members, and that the Plaintiff served as the principal agent for the commission’s deliberation by inciting the members, and that it is difficult to determine the authenticity because the contents are subjective and abstract.

3. Conclusion

If so, the plaintiff's primary claim is reasonable, and it is so decided as per Disposition by admitting it.

shall be ruled.

Judges

Judgment of the presiding judge;

Judge Detailed-type

Judges Hong-gion

Site of separate sheet

Related Acts and subordinate statutes

▣ 구 인천광역시 남동구 주민자치센터 설치 및 운영 조례 ( 2015 . 5 . 15 . 인천광역시 남동구 조례 제1244호로 개정되기 전의 것 )

Article 15 (Establishment)

A residents' autonomous council shall be established in the Dong community service center to deliberate or determine matters concerning the operation of the Dong community service center.

Article 17 (Composition, etc.)

(1) Members shall be comprised of not more than 25 members, including one chairperson, one vice-chairperson, and two auditors, and Gu council members elected in the relevant election section shall be ex officio advisory members during their positions and not more than three advisory members may be separately appointed, in addition to those of the Gu council members elected in the relevant election section.

(2) The head of the Dong shall appoint a person who is recommended or selected by the following methods as a representative of a person or organization residing or engaged in a place of business within the jurisdiction of the relevant Dong, and has expertise necessary for the operation of the self-governing center as a member:

1. Persons recommended by schools of various levels, representatives of passbooks, residents' autonomous committees, education, media, culture, art, and other citizens and social organizations located in the Dong concerned;

2. Persons selected through open recruitment;

(4) The head of the Dong shall commission members under paragraph (2) on a balanced basis, such as educational circles, press circles, cultural and artistic circles, economic circles, relationship, and ordinary residents, but the number of members belonging to a certain class shall not exceed 1/3 of the total number of members, and in particular, efforts shall be made to ensure that the ratio of the number of female members is at least 1/3 of the total number of members.

(5) The chairperson and the vice chairperson shall be elected from among the members, who are not public officials.

(7) The term of office of the chairperson, vice chairperson, members and advisers shall be two years, and may be renewed consecutively: Provided, That the chairperson may be reappointed only once.

Article 20 (Dismissal)

(1) If a member or an adviser falls under any of the following subparagraphs, the head of the Dong may dismiss him/her even before his/her term of office expires, and in cases falling under subparagraphs 4 through 5, he/she shall undergo deliberation by the Committee:

2. Where it is impracticable to perform duties for at least six months due to a disease or overseas trip.

3. Where he desires the resignation.

4. Where he/she commits an act contrary to the purpose, purpose, function, etc. of the self-governing center.

(2) The term of office of the members and advisers commissioned as their successors after dismissal under paragraph (1) shall be deemed to have commenced a new term of office.

Article 21 (Meetings)

(1) Meetings of the Committee shall be classified into regular meetings and extraordinary meetings, and regular meetings shall be held once a month, and extraordinary meetings may be held when the chairperson or the head of the Dong deems it necessary and when at least 1/3 of the members request it.

(2) A notice of holding a meeting of the Committee under paragraph (1) shall be given in the name of the chairperson.

(3) A majority of the members of the Committee shall hold a meeting and pass a resolution with concurrent votes.

(4) Advisors and advisory members may attend and speak at meetings of the Committee, but shall not have the right to vote.

Article 24 (Enforcement Rules, etc.) Matters necessary for the enforcement of this Ordinance shall be prescribed by the Rules, and other necessary matters shall be prescribed by the head of the Dong after deliberation by the Committee.

▣ 인천광역시 남동구 구월○동 주민자치센터 운영세칙

Article 16 (Convocation of Meetings) Where intending to call a meeting of the Committee under the provisions of Article 21 (1) of the Ordinance, he shall notify the members of the date, time, place, agenda, major contents, etc. of the meeting in writing at least five days before the meeting is held: Provided, That this shall not apply in cases of emergency or other unavoidable circumstances.

참조조문

-민법

참조판례

-대법원 2014. 4. 24. 선고 2013두7834 판결

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