In a case where the Local Government's Deliberation Committee on Maintenance of Local Governments is organized by the procedures prescribed by relevant Acts and subordinate statutes and autonomously determines "limit on parliamentary activities expenses, etc.", but there are parts that are not in compliance with the residents' sentiments or opinion polls in the process of determination, whether such decision is unlawful (negative

Article 33(1) and (2) of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009); Article 33(1)1, 2, and 3 of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008)

Plaintiff

The head of Yangcheon-gu Seoul Metropolitan Government (Law Firm U.S. et al., Counsel for the defendant)

Seoul High Court Decision 2009Nu16284 decided January 20, 201

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 33(1) and (2) of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009) provides that the criteria for payment of expenses for parliamentary activities, travel expenses, and monthly allowances (hereinafter “expenses for parliamentary activities, etc.”) to be paid to local council members shall be prescribed by Municipal Ordinance of the relevant local government within the scope determined by the Deliberation Committee on Maintenance of Local Government under the conditions as prescribed by the Presidential Decree. According to such delegation, Article 33(1) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008; hereinafter “Enforcement Decree”) provides that the Deliberation Committee on Maintenance of Local Autonomy shall determine the criteria for payment of expenses for parliamentary activities, etc. within the scope of the amount determined in consideration of the financial capacity, etc. of the relevant local government. The Deliberation Committee on Maintenance of Local Council provides that the expenses for parliamentary activities and travel expenses shall be determined within the scope of the specific amount prescribed by the Enforcement Decree in the attached Table.

According to the Act and subordinate statutes restrict parliamentary activity expenses, etc. to the extent determined by the Medical Service Maintenance Deliberation Committee, which is independent of the local council, to ensure the objectivity and adequacy of the criteria for the payment of parliamentary activity expenses as prescribed by municipal ordinances (hereinafter “limit on parliamentary activity expenses, etc.”). While presenting restrictions or standards to be observed when the Speaker Maintenance Deliberation Committee determines “limit on parliamentary activity expenses, etc.,” unlike parliamentary activity expenses or travel expenses, the monthly allowances are listed as examples of certain considerations, such as the income level of local residents, without presenting specific and substantial standards for the amount or calculation method. Therefore, even if the Speaker Maintenance Deliberation Committee is organized in accordance with the procedures prescribed by relevant Acts and subordinate statutes and voluntarily determines “limit on parliamentary activity expenses, etc.,” even if there are parts that are not consistent with the result of the determination process, it is merely formal procedures to the extent that it is impossible to achieve the legislative intent that reflects the resolution of the Deliberation Committee, which is the third agency, and it does not substantially go through such procedures, it cannot be deemed unlawful.

2. According to the reasoning of the judgment below and evidence duly adopted and examined by the court below, ① in the process of determining the upper limit of parliamentary activity expenses and monthly allowance (hereinafter “fixedness”). During the process of determining the upper limit of parliamentary activity expenses and monthly allowance through the third and fourth meetings, the Deliberation Committee on the Maintenance of this case considered the level of maintenance in 207 of the Yangcheon-gu Council members, the level of remuneration for local public officials, financial independence, inflation rate, the purpose of introducing the budget increase rate in Yangcheon-gu, the paid system for local public officials in 208, the status of the Gu council members for local public officials, etc.; ② The Deliberation Committee on the Maintenance of this case decided the upper limit of the fixed amount of remuneration increase at 40 million won before the fourth session, which reflects the upper limit of the fixed amount of remuneration increase in the 5th session, but it is difficult to determine the upper limit of the fixed amount of remuneration increase in the 3th session to the extent that it is in violation of the majority of the incumbent members prescribed in Article 34(5) of the Enforcement Decree.

However, the lower court determined that the determination of the upper limit on the maintenance of council members based on the legal principles as seen earlier and the criteria different from those as indicated in its reasoning is in violation of Article 3(1)3 of the Enforcement Decree of the Act. In so doing, the lower court erred by misapprehending the legal doctrine on the determination of the upper limit on the “ upper limit on the expenses for parliamentary activities, etc.,” thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)