[1] Whether the ordinances of the Ministry of Government Administration and Home Affairs, which abolished the organization of a technical staff member who performed waterworks inspection as part of the restructuring policy for local administrative organizations by the Ministry of Government Administration and Home Affairs in the state of national crisis following the so-called foreign exchange crisis, and deleted the corresponding fixed number of personnel, are null and void due to the lack

[2] Whether the ordinances of the Ministry of Government Administration and Home Affairs, which abolished the organization of a technical staff member who performed waterworks inspection as part of the restructuring policy for local administrative organizations by the Ministry of Government Administration and Home Affairs in the state of national crisis following the so-called foreign exchange crisis, and deleted the corresponding fixed number of personnel, violate the principle of excessive prohibition and equality (negative)

[3] Whether an ex officio dismissal disposition is unlawful due to the abolition of the organization of technical staff who performed waterworks inspection by the local council as part of the restructuring policy for local administrative organizations in the state of national financial crisis following the so-called foreign financial crisis (negative)

[1] Articles 15 and 103(1) of the former Local Autonomy Act (amended by Act No. 7846 of Jan. 11, 2006); Articles 13, 14, 20, and 21 of the former Regulations on Administrative Organizations and Standards for Quota, etc. of Local Governments (amended by Presidential Decree No. 1650 of Sept. 9, 199); Articles 13, 14, 20, and 21 of the former Local Autonomy Act / [2] Articles 15 and 103(1) of the former Local Autonomy Act (amended by Act No. 7846 of Jan. 11, 2006); Articles 13, 14, 20, and 21 of the former Regulations on Administrative Organizations and Standards for Quota, etc. of Local Governments (amended by Presidential Decree No. 1650 of Sep. 9, 199); Article 38(1) of the former Local Autonomy Act (amended by Act No. 16301 of the Local Public Officials Act)

[3] Supreme Court Decision 2004Du14915 Decided April 15, 2005, Supreme Court Decision 2004Du5225 Decided September 8, 2006

Plaintiff (Attorney Park Jong-il, Counsel for the plaintiff-appellant)

Gwangju Metropolitan City Head of the Waterworks Project (Law Firm Comprehensive Law Offices, Attorneys Noh Young-gu et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2002Nu188 delivered on March 25, 2004

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

We examine the grounds of appeal.

1. Facts recognized as recorded;

The record reveals the following facts.

A. In the national crisis following the so-called foreign exchange crisis, Gwangju Metropolitan City issued restructuring policies to local administrative organizations by the Ministry of Government Administration and Home Affairs, and conducted analysis of duties and personnel diagnosis to reorganizeize the organization of its affiliated organizations, etc. and to reorganize the distribution of administrative functions. As a result, Gwangju Metropolitan City's waterworks business headquarters (hereinafter "water supply business headquarters") established a policy to entrust the private sector with the inspection of water supply among the affairs under its jurisdiction, and on September 3, 1998, the Seoul Metropolitan City Ordinance on the Number of Local Public Officials (Ordinance No. 2818, hereinafter "Ordinance No. 2818, hereinafter "Ordinance"), the Enforcement Rule of the above Ordinance (Ordinance No. 2300, 743 of the Rule), the Seoul Metropolitan City Ordinance on the Allocation of Local Public Officials (Ordinance No. 230), and the Seoul Metropolitan City Ordinance on the Fixed Number of Local Public Officials (Ordinance No. 743) was repealed and the full number of assistant members corresponding thereto was deleted.

B. The Defendant: (a) established a private company composed of small-scale steering staff in each region in order to relieve the members of the water supply headquarters due to the abolition of the organization of the steering staff; (b) prepared a plan to entrust the inspection to the company; (c) decided on January 1, 2001; and (d) 56 trillion won decided to participate in the inspection.

C. On the other hand, the Ministry of the Interior issued a direction on October 14, 200 on the resolution of the excessive cost by a local government (i.e., 12200-755) in accordance with the guidelines for the resolution of the excessive cost by a local government on Oct. 14, 200, and on Oct. 31, 200 to Jul. 31, 2001, the excessive cost by a local government can be calculated as the excessive cost if the excessive cost by the local government exceeds the total vacancy. Accordingly, on Dec. 31, 200, the excessive cost by the waterworks headquarters was 49.

D. On November 15, 200, the Committee for Selection of Persons subject to Removal of the Waterworks Business Headquarters established two dismissal criteria, including “the method of establishing a corporation with a trillion won and entrusting inspection affairs to all of them ex officio,” and “the method of maintaining the status of public officials until July 31, 2001, 12 persons except for 49 or 12 persons who wish to participate in the establishment of a private company among 61 trillion won and 56 persons who wish to participate in the establishment of a private company.” In the latter case, it is difficult to set the 12 criteria criteria to remain until July 31, 2001, and it is difficult for 56 persons already to participate in the establishment of a private company and to remain at least 5 persons who want to participate in the establishment of the private company, and to be dismissed from the office due to the anticipated disadvantage of all the members who wish to participate in the work, and thus, it is difficult to select some of the expected number of persons to be dismissed from the office.

E. On November 24, 200, the Defendant issued a notice of ex officio dismissal to 60 persons except for one person dismissed from office after passing a special recruitment examination for fire-fighting officers among all the steering assistants of the waterworks headquarters. On December 29, 200, the Defendant issued the instant disposition to ex officio dismissal on December 31, 200, including the Plaintiff (Appointed Party).

2. Regarding ground of appeal No. 1

A. Article 103 (1) of the Local Autonomy Act (amended by Act No. 7846 of Jan. 11, 2006) provides that "the local government shall have local public officials at the expense of the local government concerned, and the prescribed number of local public officials shall be determined by municipal ordinance of the local government concerned in accordance with the standards prescribed by the Presidential Decree." Articles 13, 14, 20, and 21 of the Regulations on the Administrative Organizations and Standards for the Fixed Number of Local Governments (amended by Presidential Decree No. 1650 of Sept. 9, 199) specifically provide for the standards for the fixed number of local public officials. This Ordinance is based on the delegation of Article 103 (1) of the Local Autonomy Act and sets the fixed number of local public officials established in Gwangju Metropolitan City pursuant to the above Presidential Decree. Thus, this Ordinance cannot be deemed null and void since it is not delegated by the Act.

B. In addition, in order to achieve administrative efficiency by promoting the rationalization and rationalization of the scale of the local government's quota management in accordance with the strong guidelines for promoting the reorganization of local organizations in the national crisis situation, the Ordinance of this case is to entrust the management of water supply inspection to the private sector under reasonable policy judgment based on the analysis of duties and the results of human resources diagnosis of the agencies affiliated with Gwangju Metropolitan City, Gwangju Metropolitan City. The Addenda to this Ordinance of this case provides a transitional provision that public officials in excess of the prescribed number may be regarded as public officials by December 31, 200 due to the abolition, etc. of the organization in the supplementary decree of this case and to maintain their status as public officials and to take measures that enable the defendant to establish a private company for the purpose of water supply inspection to those who wish to be employed by the public, and in light of the above circumstances, even if the plaintiffs' internal affairs were to be abolished after the amendment of the Ordinance of this case and the disposition of this case against the plaintiffs was made due to the abolition of the prescribed number of personnel.

C. Meanwhile, the abolition of the organization of trillion won and the deletion of the corresponding quota in the waterworks headquarters due to the instant ordinances were conducted without any discrimination against all trillion won of the waterworks headquarters, and its implementation was conducted under reasonable policy decisions as seen above. Thus, it cannot be deemed that the instant ordinances violate the principle of equality in relation to all trillion won belonging to Gwangju Metropolitan City and all other local governments' personnel engaged in the inspection of investigators belonging to Gwangju Metropolitan City.

D. Therefore, since the ordinance of this case cannot be deemed to violate the Constitution in violation of the delegated legislative principles, the principle of excessive prohibition, and the principle of equality, the argument in this part of the grounds of appeal that the court below unconstitutionality of the ordinance of this case cannot be accepted.

3. Regarding ground of appeal No. 2

The Plaintiff (Appointed Party) received only the delegation of authority for appointment from the Gwangju Metropolitan City Mayor to the Plaintiff (Appointed Party). Therefore, even though the Defendant asserted that the instant disposition made under the name of the Defendant was unlawful, the lower court did not render a judgment. However, according to the records, it is evident that the Plaintiff (Appointed Party) filed the aforementioned assertion with the preparatory document dated September 26, 2001 during the first instance trial, and withdrawn it on the third day for pleading of the first instance trial.

In addition, Article 6 (2) of the Local Public Officials Act provides that the head of a local government may delegate part of his/her authority to appoint, suspend, dismiss, or take disciplinary action against public officials under his/her jurisdiction to the head of a local government, that is, the head of an auxiliary agency, the head of an affiliated agency, the head of a local council, the head of an office, the head of an office, or the director of an office of the Education Committee, as prescribed by municipal ordinances of the local government. Article 2 (3) of the Gwangju Metropolitan City Ordinance on the Delegation of Administrative Affairs provides that the head shall delegate part of his/her authority to appoint local public officials of class VI or lower in general service and the person who has the authority to appoint local public officials of class VI or lower in technical service belonging to the waterworks headquarters of the Gwangju Metropolitan City shall be delegated to the defendant. The right to appoint the plaintiff (appointed party) who is a local public official under his/her own name is delegated to the

4. As to the third ground for appeal

Article 2 of the Addenda of the Ordinance of this case provides that "if there are current members exceeding the prescribed number of personnel, by December 31, 200, it shall be deemed that there exists a separate prescribed number of personnel corresponding to the prescribed number of personnel" until December 31, 200, and according to Article 3 (self-regulation 12200-755) of the Ministry of Government Administration and Home Affairs of October 14, 200, calculating the prescribed number of personnel, it may be calculated as more than 100 won if the prescribed number of personnel exceeds the total number of personnel by local government only from October 1, 200 to July 31, 201, and it shall not be deemed as 200 won if the prescribed number of personnel of the above Ministry of Government Administration and Home Affairs as 30 days exceeds the prescribed number of personnel by the above 30 days. However, as seen above, it shall not be deemed that the above measures can be taken to reduce the number of personnel ex officio dismissal by the public official of the above Ministry of Government Administration and Home Affairs.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the criteria for the calculation of costs in the disposition of this case.

5. As to the fourth ground for appeal

As seen earlier, as long as the Minister of Land, Infrastructure and Transport decided to entrust inspection to a private company established by Gwangju Metropolitan City, which was engaged in water supply inspection according to a reasonable policy determination for the restructuring of affiliated organizations, and revised the Ordinance of this case to abolish the organization of the head of the water supply headquarters and delete the corresponding prescribed number of personnel, so long as the Defendant decided to dismiss all of the assistant members ex officio in order to smoothly promote the private company’s establishment under the circumstances where the majority of assistant members wish to participate in the establishment of the private company, it should be determined by taking into account the form of appointment, job performance, job performance, job performance, etc. as provided in Article 62(3) of the Local Public Officials Act. Thus, it cannot be said that the Defendant issued the instant disposition without setting the criteria for dismissal, and the Defendant is not obligated to prepare the criteria for selecting those subject to relocation similar to the dismissal criteria as provided in Article 62(3) of the Local Public Officials Act prior to the disposition of this case, and the possibility of transfer or reappointment by the Plaintiff (Appointed Party) etc. does not change.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation and application of Article 62 (3) of the Local Public Officials Act.

6. Ground of appeal No. 5

A. While the court below did not determine the plaintiffs' assertion that the disposition of this case was unlawful since the legitimate subject of the disposition of this case had heard the opinions of the Gwangju Metropolitan City Personnel Committee pursuant to Article 62 (2) of the Local Public Officials Act when rendering the disposition of this case under the premise that the defendant is not the defendant but the Gwangju Metropolitan City Personnel Committee, the plaintiff (appointed party) was not entitled to the disposition of this case. However, even after examining the records, there is no evidence that the plaintiff (appointed party) made the above assertion until the court below. As seen earlier, as seen earlier, the defendant was duly delegated the authority to take the disposition of this case by the Gwangju Metropolitan City Mayor, and it is evident that the defendant violated Article 62 (2) of the Local Public Officials Act, so the above ground for appeal is groundless.

B. In addition, according to the records, the Ministry of Government Administration and Home Affairs issued the guidelines for the resolution of the excessive cost of the local government (No. 12200-409) on May 27, 2000 to the person subject to the ex officio dismissal by not later than three months prior to the scheduled date of dismissal. However, the defendant notified the plaintiff (appointed party) on November 24, 200 to the person subject to the ex officio dismissal, etc. and issued the disposition of this case on December 29, 200, but the above guidelines for the resolution of the Ministry of Government Administration and Home Affairs are merely a recommendation, and even if the defendant did not comply with the above guidelines and issued the disposition of this case, it cannot be deemed unlawful as it lacks procedural justification.

The decision of the court below to the same purport is just, and there is no error of law in the incomplete hearing as to the procedural legitimacy of the disposition of this case.

7. Ground of appeal No. 6

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, it is difficult to transfer or replace the affairs of the trillion won to another series of class because they fall under the simple duties generally, and at the time of the disposition of this case, it was a situation where the fixed number of the other series of class of class among public officials in technical service has been reduced, and the act of ex officio dismissal of the trillion won was caused by the abolition of the series of class of the water supply headquarters's work as a whole by the entrustment of inspection operations to the private sector, and the plaintiff (appointed party) refused to participate in the establishment of the private company for all trillion won including the plaintiff (appointed party). In light of the fact that the plaintiff (appointed party) made efforts to minimize damage caused by the removal of the water supply headquarters's entrusted inspection affairs of the water supply headquarters to the nine small companies established by the private company after the disposition of this case, the disposition of this case cannot be deemed to have been deviated or abused.

In light of the records, we affirm the fact-finding and judgment of the court below, and there is no error in the misapprehension of legal principles as to deviation and abuse of discretionary power, such as the grounds for appeal.

8. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)