In a case where the Incheon Metropolitan City Council requested reconsideration of the Incheon Metropolitan City Ordinance on the Support for Fire-Fighting Officers for the Medical Care for the reason that the Incheon Metropolitan City Mayor violates Article 17 of the Local Finance Act with respect to the “Ordinance on the Support for Fire-Fighting Officers” with the payment of consolation benefits to the selected fire-fighting officials among the fire-fighting officials on official duties, but the City Council re-resolutions the Ordinance, the case holding that the Ordinance is contrary to Article 44(4) of the Local Public Officials Act, and there is no circumstance to deem that the Ordinance is exceptionally permitted pursuant to the proviso to Article

In a case where the Incheon Metropolitan City Council demanded reconsideration of the Incheon Metropolitan City Ordinance on the Assistance to Fire Officers during the period of medical care with the reason that the Incheon Metropolitan City Mayor violated Article 17 of the Local Finance Act with respect to the “Ordinance on the Assistance to Fire Officers,” which provides for the payment of consolation benefits to the selected fire officers during the period of medical care, but the City Council re-resolutions the Ordinance, the case held that the payment of consolation benefits under the provisions of the Ordinance is not permissible exceptionally under the proviso of Article 17(1) of the Local Finance Act, even if it is not paid to the general public of the public officials belonging to Incheon Metropolitan City even if it is not paid at all times, for the selected fire officers among the public officials on official duty during the period of medical care, and the payment of consolation benefits is made continuously during the period of medical care due to the high-level daily rate as the higher by rank during the period of medical care, regardless of the name, since the actual payment is different from the payment of consolation benefits to the fire officers on duty, a local public official, regardless of the need for the provision of the Ordinance.

Article 44(4) of the Local Public Officials Act, Article 17(1) of the Local Finance Act

Incheon Metropolitan City Mayor (Attorney Kim Tae-tae, Counsel for defendant-appellant)

Incheon Metropolitan City Council (Attorney Lee Sung-sung, Counsel for defendant-appellant)

April 26, 2012

The re-resolution made by the Defendant on October 31, 201 with respect to the Incheon Metropolitan City Ordinance on Assistance to Fire-Fighting Officers is null and void. The litigation cost shall be borne by the Defendant.

The same shall apply to the order.

1. Re-resolution of the Ordinance of this case and a summary of its contents

The following facts may be acknowledged according to the statements in Gap evidence Nos. 1 through 4:

A. On September 29, 2011, the Defendant passed a resolution on the Incheon Metropolitan City Ordinance on Assistance to Fire-Fighting Officials (hereinafter “instant Ordinance”) and transferred it to the Plaintiff on October 4, 201, and the Plaintiff requested the Defendant to re-examine the instant Ordinance on October 24, 201, on the ground that “the instant Ordinance violates Article 17 of the Local Finance Act that prevents local governments from making contributions, subsidies, contributions, or other public funds to individuals.” However, the Defendant re-resolutioned the instant Ordinance on October 31, 2011, thereby confirming the instant Ordinance.

B. According to the Ordinance of this case, the plaintiff can pay consolation money calculated by the daily unit price (in the case of a fire captain, who is the highest rank by rank, from 42,230 won to 29,480 won in the case of a fire captain, who is the lowest rank), of consolation money as stipulated in the Ordinance of this case, to a person selected among the fire officers on official duty and the fire officers on official duty who have been on official duty, for the purpose of boosting the morale of fire officers who were exposed to danger and injury at ordinary times and improving their working conditions, and the purport that consolation money shall be appropriated in the general account expenditure budget each year (Articles 9 through 13; hereinafter referred to as the "Ordinance of this case").

2. Whether the Ordinance of this case is unlawful

Article 17(1) of the Local Finance Act provides, “Local governments shall not make contributions, subsidies, contributions, or other public funds to individuals or organizations: Provided, That this shall not apply to cases falling under any of the following subparagraphs in connection with the affairs under the jurisdiction of local governments and to cases where public institutions are disbursed.” As follows, Article 17(1) of the Local Finance Act provides, “1. Where the provisions of the Act exist, 2. where the State is designated as financial resources from the State subsidy, 3. where the purpose of use is designated as donations, 4. Where it is deemed necessary for a project recommended by a local government if it is impossible to implement the project without subsidies

The payment of consolation money in accordance with the ordinance of this case constitutes the disbursement of public funds to individuals of local governments which are prohibited in principle by the main sentence of Article 17(1) of the Local Finance Act, and therefore, whether it constitutes an exceptionally permissible case under each subparagraph of the proviso of the same Article

Article 44(4) of the Local Public Officials Act provides that “No money or valuables may be paid as remuneration for public officials unless otherwise provided for in this Act or other Acts and subordinate statutes.” Although it is not always paid to the general public of the fire officials belonging to Incheon Metropolitan City, the consolation benefits paid pursuant to the provision of the Ordinance of this case is continuously paid to the selected public officials among the fire officials on official duty during the period of medical care due to a disease in official duties, and the method of payment is also paid with the amount calculated with a higher daily rate as the higher by rank while the higher rank is differentiated by rank during the period of medical care. Thus, regardless of its name, such consolation benefits do not go against Article 44(4) of the Local Public Officials Act even if there is no need to provide assistance to the fire officials on official duty, and thus, it does not go against the proviso to Article 9(2)1(e) of the Local Public Officials Act concerning the welfare of the public officials on official duty, the provision of Article 9(1)1(c) and (7) of the Local Finance Act concerning the rescue and welfare Ordinance of the local government.

3. Conclusion

Therefore, the Plaintiff’s claim of this case is accepted, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-young (Presiding Justice)