[1] The meaning of "within the scope of Acts and subordinate statutes" under Article 15 of the Local Autonomy Act

[2] 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)

[3] In a case where the Ordinance provides that a local council may demand the correction of the administrative action of the executive organ as well as the reprimand of a related person, whether it is in violation of the law (affirmative)

[1] The main sentence of Article 15 of the Local Autonomy Act provides that "the local government may enact municipal ordinances concerning its affairs within the scope of statutes." Since the term "within the scope of statutes" refers to the scope that does not violate the laws and regulations, it shall not be effective where the ordinances enacted by the local government violate the laws and regulations.

[2] 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 agency, and the council and the head of an organization shall grant independent authority to the head of the organization and shall maintain balance with each other. Thus, it is impossible to enact regulations that violate the other party's own authority beyond the scope of checks by municipal ordinances unless otherwise provided for in the Act. The local council has the authority to inspect and investigate the administrative affairs of a local government pursuant to Article 36 of the same Act, as well as voting rights to the enactment and amendment of municipal ordinances, deliberation and resolution, determination of the budget, approval of settlement of accounts, and other matters stipulated in Article 35 of the same Act. Thus, it is impossible to permit the establishment of a new check-making body within the scope of authority given by statutes and without any provision in the Acts and subordinate statutes.

[3] Article 19(2) of the Enforcement Decree of the Local Autonomy Act does not stipulate the phrase "the reprimand, etc. of the person concerned" that the head of the local government has the authority to appoint and dismiss employees and take disciplinary action against local public officials under Article 96 of the Local Autonomy Act. Since Article 69 and Article 72 of the Local Public Officials Act provides that the person who has authority to appoint shall take disciplinary action against local public officials through a resolution of the personnel committee shall be subject to disciplinary action, it is not simply excluded from the person who has authority to appoint the executive agency so that it does not infringe upon the personnel committee's own authority on personnel affairs or disciplinary action against the employees of the executive agency, but it is not simply omitted by mistake. Thus, the draft of the amended municipal ordinance that allows the local council to demand the correction of the executive agency as well as the reprimand, etc. of the person concerned, which is beyond the scope of authority given by the law, is ultimately to make a new check system without law and ultimately violates Article 19(2)

[1] Article 15 of the Local Autonomy Act / [2] Articles 9, 15, 35, and 36 of the Local Autonomy Act, Article 117 (1) of the Constitution / [3] Articles 9, 15, and 96 of the Local Autonomy Act, Article 19 (2) of the Enforcement Decree of the Local Autonomy Act, Articles 69 and 72 of the Local Public Officials Act, Article 117 (1) of the Constitution

[1] Supreme Court Decision 200Du29 decided Nov. 24, 200 (Gong2001Sang, 167) Supreme Court Decision 2002Du23 decided Apr. 26, 2002 (Gong2002Sang, 1272) Supreme Court Decision 2002Du7135 decided May 27, 2003 (Gong2003Ha, 1463) / [2/3] Supreme Court Decision 92Da31 decided Jul. 28, 1992 (Gong192, 2575) (Gong1994, 194, 1506) 200Da175 decided Apr. 26, 194 (Gong1994, 1506), Supreme Court Decision 2000Da963969 decided Mar. 26, 197 (Gong16969 decided Apr. 26, 2006)

Gu U.S. Market (Attorney White-gu et al., Counsel for defendant-appellant)

[Judgment of the court below]

September 2, 2003

1. The defendant's re-resolution on the amendment of the Ordinance concerning the Audit and Inspection of Administrative Affairs of the Gu and America, which was made on June 24, 2003, shall not be effective.

2. The costs of the lawsuit are assessed against the defendant.

1. Results of reconsideration of the amended Municipal Ordinance;

The following facts can be acknowledged in full view of the whole purport of the pleadings in the evidence Nos. 1 and 2-1, 2, 3, 4, 5-1, and 5-2 of the evidence Nos. 1 and 2-1, 5-2.

A. On May 9, 2003, the Defendant passed a resolution on the amendment of the Municipal Ordinance (hereinafter referred to as the "Revision Ordinance") as stated in the order and transferred it to the Plaintiff on the 13th of the same month. The Plaintiff demanded the Defendant to re-resolution the amendment Ordinance on June 2, 2003 on the ground that it is in violation of the statutes. However, the Defendant re-resolutioned the amendment Ordinance as the original bill on June 24, 2003, and the amendment was finalized.

B. The amendment of the Municipal Ordinance is a provision that "if there is a reason to require a correction of a Si or agency in question or in question as a result of an inspection or investigation" under Article 15 (2) of the previous Ordinance on the Audit and Inspection of Administrative Affairs of the City of the City of the City of the City of the City of the United States, the Council shall request the correction thereof and shall transfer to the City or agency in question, or if there is a reason to require a correction of a Si or agency in question (including a reprimand, etc. of the person concerned) of the City or agency in question, the Council shall request the correction thereof and matters which the City or agency concerned deems appropriate to be directly dealt with."

2. Whether the draft amended Municipal Ordinance violates any statute;

A. The main sentence of Article 15 of the Local Autonomy Act (hereinafter referred to as the "Act") provides that "local governments may enact municipal ordinances with respect to their affairs within the scope of statutes." Since "within the scope of statutes" refers to the scope that does not violate laws and regulations, the ordinances enacted by local governments are not effective (see Supreme Court Decision 2002Da23, Apr. 26, 2002, etc.).

B. Therefore, we examine whether the amended municipal ordinance violates the law.

The Act provides that the highest decision-making organ that determines the intention of a local government inside and outside of a local council shall have the head of an execution organ who expresses the intention of a local government as the representative of a local government and supervises the affairs of a local government as an independent agency, and that the council and the head of an organization shall grant independent authority to the president of the local government and shall maintain balance with each other. Thus, barring special provisions in Acts, it is impossible to enact regulations that infringe on the other party's own authority beyond the scope of 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 pursuant to Article 36 of the Act, in addition to the enactment and revision of Municipal Ordinance, deliberation and resolution of the budget, approval of settlement of accounts, and other matters stipulated in Article 35 of the Act and subordinate statutes. Thus, it is impossible to permit the establishment of a new check-making organ within the scope of authority given by the executive organ to be in violation of the inherent authority of the executive organ (see, e.g., Supreme Court Decisions 92Da31696, Apr. 16, 197.

However, Article 36 (7) of the Act on the Inspection and Investigation of State Administration provides that matters necessary for the inspection and investigation of administrative affairs shall be determined by the Presidential Decree in accordance with the Act on the Inspection and Investigation of State Administration. Article 16 (2) of the Act on the Inspection and Investigation of State Administration provides that if there are grounds for "the Government or the agency concerned (including the reprimand, etc. of the person concerned)", the National Assembly shall demand the correction thereof, and the matters deemed reasonable to be dealt with by the government or the agency concerned shall be transferred to the government or the agency concerned." On the other hand, Article 19 (2) of the Enforcement Decree of the Act provides that "if there are grounds for "the local government or the agency concerned or the agency concerned" requires the correction, the local council shall request the correction thereof, and the matters deemed proper to be dealt with by the local government or agency concerned shall be transferred only to the local government or agency concerned."

On the other hand, Article 96 of the Act provides that the head of a local government has the authority to appoint and dismiss employees under his/her jurisdiction or take disciplinary action, and Article 69 and Article 72 of the Local Public Officials Act provides that when there are grounds for disciplinary action against a local public official, the appointment authority shall comply with the resolution of the personnel

C. In light of such relevant laws and regulations, the phrase "the reprimand of a person concerned" is not stipulated in Article 19 (2) of the Enforcement Decree of the Act. Article 96 of the Act provides that the head of a local government shall have the authority to appoint and dismiss employees and take disciplinary action against local public officials under his/her jurisdiction. Since disciplinary action against local public officials under Articles 69 and 72 of the Local Public Officials Act provides that the appointment authority shall be subject to a disciplinary resolution by the personnel committee, it is not simply omitted because it intentionally excludes employees of the executive agency so that they do not infringe on their own authority concerning personnel affairs or disciplinary action. Thus, the draft of the amended ordinances that allows local council to demand correction as well as disciplinary action against a person concerned, etc. is not only directly interfering with the administrative action of the local council beyond the scope of authority given by the Acts and subordinate statutes, and ultimately, it violates Article 19 (2) of the Enforcement Decree of the higher Act.

3. Conclusion

Therefore, since the amendment of the Municipal Ordinance is null and void, the plaintiff's claim of this case seeking the exclusion of the validity of the resolution is justified, and the costs of lawsuit are assessed against the defendant who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae-sik (Presiding Justice)