[1] Whether it is permissible for a local council to establish a new check system that does not have any provision in the law and check the enforcement agency (negative)

[2] Whether a local government is within the scope of the legislative power of the pertinent local council to determine the number of members of the committee for the examination of eligible private consignment persons who are the first class of the collegiate administrative agency and the composition cost of members (affirmative)

[1] The Local Autonomy Act provides that the highest decision-making body that determines the intention of a local government inside and outside of the local council shall have the head of an execution body that expresses the intention of a local government as a representative of a local government and supervises its affairs as an independent agency, and that the council and the head of an organization shall grant independent authority to the president of the local council and shall maintain balance with each other. Thus, barring special provisions in law, it is not possible to enact regulations that infringe on the other party’s own authority beyond the scope of checks by municipal ordinances. The local council has the authority to inspect and investigate the administrative affairs of a local government under Article 41 of the Local Autonomy Act, as well as voting rights to the matters stipulated in Article 39(1) of the Local Autonomy Act, etc., as well as the enactment and amendment of municipal ordinances, deliberation and resolution, determination of the budget, settlement approval, and other matters with respect to the affairs of a local government. Thus, it is not possible to permit the establishment of a new check body that

[2] A local government may establish a collegiate administrative agency when it is necessary to independently perform part of its affairs under its jurisdiction (Article 116(1) of the Local Autonomy Act), and matters necessary for the establishment and operation of a collegiate administrative agency may be prescribed by municipal ordinances (Article 116(2) of the Local Autonomy Act). The purport to delegate matters necessary for the establishment and operation of an collegiate administrative agency under the Local Autonomy Act to the Municipal Ordinance is to establish an collegiate administrative agency in accordance with the actual circumstances, considering the special circumstances of each local government. Therefore, it is reasonable to view that the pertinent local government is within the scope of the legislative authority to determine the fixed number of members of the collegiate administrative agency and how to determine the composition of members for the purpose of appropriate control over the fair composition and operation of a committee for persons eligible for private entrustment who are the kind of administrative agency under its jurisdiction

[1] Articles 22, 39, and 41 of the Local Autonomy Act / [2] Articles 22, 39, 41, and 116 of the Local Autonomy Act

[1] Supreme Court Decision 2003Da13 decided September 23, 2003 (Gong2003Ha, 2101) Supreme Court Decision 201Da18 decided April 28, 2011

Gyeonggi-do Sungnam City (Law Firm Tech, Attorneys Kim Dong-dong, Counsel for the plaintiff-appellant)

Gyeonggi-do Seongbuk-gu Council (Attorney Kim Sung-sung, Counsel for the defendant-appellant)

October 11, 2012

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The re-resolution of the Ordinance on the Promotion of Entrustment of Affairs to the Private Sector and the partial Amendment of the Ordinance on the Management of Affairs to the Private Sector in Seongbuk-si, which was made by the Defendant on July 18, 2011 has no effect.

1. Re-resolution of the Ordinance of this case

According to the statements in Gap evidence 1 to 4, Eul evidence 1 to 3, the following facts can be acknowledged:

A. On February 25, 2011, the Defendant held a temporary session of the Sungnam-si Council on 176 occasions and passed a resolution on the partial amendment of the Ordinance on the Promotion of Entrustment of Administrative Affairs to the Private Sector and the Management of Administrative Affairs to the Plaintiff on February 28, 2011 (hereinafter “instant Ordinance”).

B. According to Article 7(2) of the Ordinance of this case (hereinafter “the Ordinance of this case”), the Plaintiff must commission two members from among 6 to 9 members from among the 6 or 9 members from the qualified committee for private consignment with the authority to select an entrusted institution in connection with the affairs of private consignment belonging to the authority.

C. On March 16, 2011, the Plaintiff demanded the Defendant to re-examine the instant Ordinance by re-resolutioning the instant Ordinance on July 18, 2011, on the grounds that the provision of the instant Ordinance goes beyond the bounds of the legislative authority of the local council by establishing a new check-up system with respect to the head of the local government without any provision in the statutes. Moreover, the Plaintiff’s prior and direct intervention in the appointment of the members, who are inherent authority of the head of the local government, was illegal.

2. Whether the Ordinance violates the provisions of this case

A. Whether it constitutes a new check device that has no legal basis

The Local Autonomy Act provides that the highest decision-making body that determines the intention of a local government inside and outside the local council shall have the head of an executing body who expresses the intention of a local government as a representative of a local government and supervises its affairs as an independent organization, and that it shall be in balance with mutual checks and balances. Thus, barring special provisions in Acts, the Local Autonomy Act may not enact regulations that violate the other party’s own authority beyond the scope of checks and checks by Municipal Ordinance, unless otherwise provided for in Acts and subordinate statutes. The local council has the authority to inspect and investigate the administrative affairs of a local government under Article 41 of the Local Autonomy Act, as well as voting rights on the matters stipulated in Article 39(1) of the Local Autonomy Act, etc., as well as the enactment and amendment of Municipal Ordinance, deliberation and determination of the budget, approval of settlement of accounts, approval of other accounts, etc.

However, when it is necessary to independently perform part of the affairs under its jurisdiction, the local government may establish a collegiate administrative agency (Article 116(1) of the Local Autonomy Act), and matters necessary for the establishment and operation of the collegiate administrative agency may be prescribed by municipal ordinances (Article 116(2) of the Local Autonomy Act). The purport to delegate matters necessary for the establishment and operation of the collegiate administrative agency under the Local Autonomy Act to the Municipal Ordinance is to establish a collegiate administrative agency in accordance with the actual circumstances of each local government, taking into account the special circumstances of each local government. Therefore, it is reasonable to view that the local government’s determination of the fixed number of the members of the collegiate administrative agency and the composition expenses of the members of the committee for the examination of qualified persons to be entrusted to the private sector for the fair formation and operation of the committee for the examination of qualified persons to be entrusted to the private sector, within the scope of the legislative discretion that the local council can determine by municipal ordinances, even if the ordinances of this case stipulate two of the qualified members of the committee for the examination of private sector.

B. Whether the Plaintiff’s commission authority is active intervention

In principle, a local council is not allowed to appoint and dismiss all or part of the members of the executive body as a member of the local council because the local council actively intervenes in the executive body's personnel rights in advance. However, in light of the principle of mutual checks and balance between the executive body and the decision-making body and the scope of separation and allocation of authority with respect to the executive body and the decision-making body, it is reasonable to view that the local council actively intervenes in the executive body's personnel rights and is allowed within the scope of the authority to check to the executive body of the local council under the Local Autonomy Act.

C. Whether the principle of equality is violated

The provision of the Ordinance of this case only prescribes that two of the members of the Committee for Deliberation on Persons Eligible to Entrustment to the Private Sector shall be commissioned from among the members of the City Council, and the appointment authority of the members shall still be held by the Plaintiff, not by the identity of the City Council member. Therefore, the provision of the Ordinance of this case cannot be deemed to be against the principle of equality, since it cannot be said that the provision of the Ordinance of this case established a arbitrary standard which

3. Conclusion

Therefore, the plaintiff's claim is dismissed, 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 Min Il-young (Presiding Justice)