[1] Whether the disposition authority of the disposition authority is subject to ex officio investigation in administrative litigation (negative)

[2] The case holding that, where a local government, in the state of foreign financial crisis following the national financial crisis, established a policy to entrust the private sector with the affairs of water supply inspection in accordance with the restructuring policy of the Ministry of Government Administration and Home Affairs, and ex officio dismissal of a steering officer who performed the autopsy operations, the pertinent steering officer does not provide the pertinent steering officer with an opportunity to change his position or even if the depreciation rate was higher than that of other organizations, it does not deviate

[1] Article 27 of the Administrative Litigation Act / [2] Article 62 of the Local Public Officials Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 96Nu570 delivered on June 25, 1996 (Gong1996Ha, 2385) Supreme Court en banc Decision 95Nu8669 delivered on June 19, 197 (Gong1997Ha, 1913)

Plaintiff

Gwangju Metropolitan City Water Supply Project Head (Law Firm Law Firm, Attorneys Choi Ho-hoon et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2002Nu195 delivered on April 22, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Facts recognized as recorded;

The record reveals the following facts.

A. In the national financial crisis following the so-called foreign exchange crisis, Gwangju Metropolitan City has been instructed by the Ministry of Government Administration and Home Affairs to restructure local administrative organizations, and conducted analysis of duties and personnel diagnosis to reorganizeize the organization of its affiliated agencies, 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. 743), and the prescribed number of assistant members was all deleted. However, Article 2 of the Addenda of this case shall be deemed to separately stipulate that the prescribed number exceeds the prescribed number of members.

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. Meanwhile, on October 14, 200, the Ministry of Government Administration and Home Affairs issued a guideline on the resolution of the excess cost of local governments on Oct. 14, 2000 (i.e., the 12200-755) to the effect that the excess cost may be calculated as the excess cost if the total excess cost of each local government exceeds the total vacancy for a limited period from Oct. 10 to July 31, 2001. Accordingly, on December 31, 2000, the excess cost of the waterworks business headquarters as of December 41, 200 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 passed the special recruitment examination for fire-fighting officers among all the steering assistants of the waterworks headquarters, and notified ex officio dismissal of the person to be dismissed. On December 29, 200, the Defendant issued the instant disposition to ex officio dismissal on December 31, 200.

2. As to the ground of appeal on the defects of the principal agent

The plaintiff filed a claim that the disposition of this case was unlawful because the defendant was not the disposition authority of this case. However, in administrative litigation, whether the disposition authority of this case is authorized shall not be deemed to be an ex officio investigation (see Supreme Court en banc Decision 95Nu8669 delivered on June 19, 197). The above ground of appeal is obvious in the record that the plaintiff was offered only in the final appeal, and it cannot be a legitimate ground of appeal as to the judgment of the court below.

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 a public official under his/her jurisdiction to the head of a local government, that is, the head of a subsidiary 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 [Attachment 3] of the Gwangju Metropolitan City Ordinance on the Entrustment of Administrative Affairs provides that the head shall delegate part of his/her authority to appoint a public official under his/her jurisdiction to the defendant who is a local public official of Grade VI or lower in general service and a person who has authority to appoint a local public official of Grade VI or lower in technical service belonging to the Gwangju Metropolitan City. The right to appoint the plaintiff who is a local public official under his/her own name

3. As to the grounds of appeal on dismissal criteria

As seen earlier, in Gwangju Metropolitan City’s policy making to entrust inspection of water supply facilities to a private company established by Gwangju Metropolitan City in accordance with reasonable policy making based on the analysis of its duties and the results of human resource diagnosis for the restructuring of its affiliated organizations, and the amendment of this Ordinance to abolish the organization of the headquarters for water supply business and to delete the corresponding prescribed number of personnel, so long as the majority of the trillion won want to dismiss all of the trillion won ex officio in order to smoothly promote the entrusted management of inspection affairs under the situation where the majority of the trillion won want to participate in the establishment of a private company, it is virtually insignificant and unnecessary to determine the dismissal standards taking into account the type of appointment, performance of duties, job performance, job performance, etc. as provided in Article 62(3) of the Local Public Officials Act, so the Defendant cannot be said to have committed the instant disposition without setting any dismissal standards.

The judgment of the court below to the same purport is just, and there is no error of law such as interpretation and application of Article 62(3) of the Local Public Officials Act, misunderstanding of legal principles as to deviation and abuse of discretionary power, and incomplete hearing, etc. The Supreme Court decisions cited by the plaintiff are different from this case, or are inappropriate to be invoked in this case,

4. As to the ground of appeal on the omission of resolution by the personnel committee

In rendering the instant disposition under the premise that the legitimate subject of the instant disposition is not the defendant, but the Gwangju Metropolitan City Personnel Committee should have heard the opinion of the Gwangju Metropolitan City Personnel Committee in advance pursuant to Article 62(2) of the Local Public Officials Act, but only the deliberation and resolution of the Personnel Committee of the Gwangju Metropolitan City Personnel Committee was made, and the defendant did not issue a legitimate statement of grounds for disposition in rendering the instant disposition. Thus, according to the records, the above ground for appeal cannot be a legitimate ground for appeal against the judgment of the court below on the ground that it is apparent that the Plaintiff was offered only to the court of final appeal.

5. As to the grounds of appeal related to the criteria for calculation of costs

Article 2 of the Addenda to 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." According to Article 2 of the Addenda to the Ordinance of this case, October 14, 200, the Ministry of Government Administration and Home Affairs guidelines III (self 12200-755) for the removal of the excessive number of personnel by local governments. In calculating the excessive number of personnel, the number of members exceeding the total number of members by local government can be calculated as more than 100 won if the excessive number of members exceeds the total number of members by local government exceeds the prescribed number of 3.0,000, the number of members exceeding the prescribed number of members by the above Ministry of Government Administration and Home Affairs as 20,000,0000 won by December 31, 200, it can be said that the above measures can be taken by the defendant ex officio dismissal, not by the above 3.

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 criteria for calculation of costs in the disposition of this case.

6. As to the grounds of appeal related to the deviation and abuse of discretionary power

According to the reasoning of the judgment below, in the situation of the so-called foreign exchange crisis of Gwangju Metropolitan City, the duty analysis and manpower diagnosis for the restructuring of organization and the restructuring of administrative functions in accordance with the restructuring policy of the Ministry of Government Administration and Home Affairs established a policy to entrust the private sector with the affairs of inspecting water supply among the affairs of the waterworks headquarters. When the Ordinance of this case, etc. was amended and the water supply facility headquarters abolished its organization, and the prescribed number of its members was deleted, the defendant inevitably conducted the disposition of this case for the entrusted affairs of checking, and the duty of trillion won was hard to change or replace the position to another occupational category. The court determined that there were no errors in the law of persons of distinguished service to the State or the law of the State or the law of the State and the government of Gwangju Metropolitan City regarding the entrustment of inspections to the private sector, even if there were no changes in the prescribed number of other occupational categories among the public officials at the time of the disposition of this case, the circumstance and situation of the disposition of this case, the defendant's establishment of a small-scale public official and the opportunity to conduct inspections as well.

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

7. 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 Kim Nung-hwan (Presiding Justice)