The scope of "Ordinance of the relevant local government" under Articles 16 and 84 of the Urban Planning Act, which is a delegation provision concerning the management, etc. of a utility tunnel.

Since the construction and management entity of a utility tunnel is the head of a Si/Gun, the "Ordinance of the relevant local government" under Article 16 or Article 84 of the Enforcement Decree of the Urban Planning Act, which stipulates matters necessary for its management, which are not prescribed in Article 55 (2) and (3) of the Enforcement Decree of the Urban Planning Act, shall also be deemed to mean the Ordinance of

Articles 16 and 84 of the Urban Planning Act, Article 55 of the Enforcement Decree of the Urban Planning Act

Attorney Lee Dong-young, Counsel for the head of Yeonsu-gu Incheon Metropolitan City

The Yeonsu-gu Seoul Metropolitan Council

1. The re-resolution on the draft of the Ordinance on the Establishment of and Collection of Occupancy Fees, etc. in Yeonsu-gu, which the defendant collected on April 17, 1995 shall not be effective.

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

The same shall apply to the order.

1. The following facts may be acknowledged in full view of the evidence Nos. 1, 2, and 3-5 evidence Nos. 1, 2, and 1, 3-4 evidence Nos. 1, 2, and 3-1, 4-1, and 2, for which there is no dispute over establishment, and there is no evidence contrary thereto.

A. On March 9, 195, the Defendant passed a resolution on the draft of the Yeonsu-gu Ordinance on the Establishment of Utility Tunnels and the Collection of Occupancy Fees, etc. (hereinafter “Ordinance”) at the 4th plenary session of the extraordinary session, and transferred it to the Plaintiff on the 11th of the same month. After reviewing the above draft Ordinance, the Plaintiff requested reconsideration pursuant to Article 98(1) of the Local Autonomy Act on the ground that matters concerning the installation of utility tunnels, the imposition of occupation fees, etc. are not matters to be prescribed by the Ordinance of Incheon Metropolitan City, but are not matters to be prescribed by the Gu Ordinance. However, on April 17, 1995, the Defendant re-established

B. The Ordinance of this case, which is re-decided, provides for the installation cost-bearing of a utility tunnel, the occupation, use and management of a utility tunnel, the installation cost of a utility tunnel, and the collection method of occupancy fees and management expenses, in accordance with Article 84 of the Urban Planning Act and Article 55 of the Enforcement Decree of the same Act

2. Whether the Ordinance of this case violates the Urban Drawing Act

A. Common ditch is a facility installed underground under the provisions of the Urban Planning Act in order to ensure the aesthetic view of the city, to preserve road structures, and to ensure smooth traffic flow by jointly setting the underground facilities (supply facilities, communication facilities, such as electricity, gas, and water supply, and sewerage facilities, etc.) (Article 2(1)12 of the Urban Planning Act). Since the installation of common ditch in the urban planning area is required only by urban planning (Article 16(1) and subparagraph 1(b) of Article 2 of the Urban Planning Act, unless otherwise prescribed by the Urban Planning Act and other Acts and subordinate statutes, the installation of common ditch shall be done by the implementer of the urban planning project, the mayor (including the Seoul Special Metropolitan City Mayor and the Metropolitan City Mayor; hereinafter the same shall apply), the head of Gun shall install it (Article 23 and subparagraph 1 of Article 3 of the same Act)

(b) Except as otherwise provided for in Acts and subordinate statutes, a utility tunnel shall be managed by the head of a Si/Gun, and in this case, expenses for managing and managing a utility tunnel, and other necessary matters which are not provided for in Article 5(2) and (3) of the Enforcement Decree of the same Act shall be prescribed by Municipal Ordinance of the relevant local government (Article 16 of the same Act and Article 55 of the Enforcement Decree). Where a person who fails to bear expenses for installing a utility tunnel intends to occupy or use a utility tunnel, he/she shall obtain permission or approval from the head of the relevant Si/Gun who manages the utility tunnel, and pay fees for occupying

C. In particular, such utility tunnels are metropolitan facilities installed over two or more urban planning zones, which require a wide-area maintenance system, and are installed according to a metropolitan planning plan within a metropolitan planning zone (Article 2(1)4 of the same Act and Article 2-2 of the Enforcement Decree of the same Act), so they may enter into an agreement with the head of the relevant Si/Gun or set up and manage a council, etc., and may be established and managed by the Do Governor if such agreement is not concluded or a council is set up (Article 20-5(1) and (2) of the same

D. In full view of the above various provisions, the head of a Si/Gun shall install and manage a utility tunnel, and the "Ordinance of the relevant local government" under Article 16 or Article 84 of the Enforcement Decree of the same Act, which stipulates matters necessary for its management that are not provided for in Article 55 (2) and (3) of the same Act, shall also be deemed to mean the Ordinance of the Seoul Special Metropolitan City, Metropolitan City, Si,

Therefore, the Ordinance of this case, which provides for the installation of a utility tunnel and the collection of fees for the occupation and use thereof, was enacted by the defendant in violation of Articles 16 and 84 of the Urban Planning Act, and thus, it cannot be deemed null and void as a whole without any need to examine whether the specific provisions are in violation of the Act and subordinate statutes. This does not change merely because the place where a utility tunnel is installed in Incheon Metropolitan City.

3. Thus, the plaintiff's claim of this case disputing the validity of the above re-resolution pursuant to Articles 98 (3) and 159 (3) of the Local Autonomy Act is justified, and the costs of lawsuit are assessed against the defendant who has lost the lawsuit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)