Whether the local council is allowed to make a resolution and re-resolution by proposing an ordinance on the establishment of a collegiate administrative agency (negative)

Articles 101, 103, 112, 127, and 116 of the Local Autonomy Act; Articles 5, 7, and 36(2) of the Regulations on Administrative Bodies and Standards for Quota of Local Governments

Supreme Court Decision 2001Da64 Decided December 11, 2001 (Gong2002Sang, 308) Supreme Court Decision 2005Da48 Decided August 19, 2005 (Gong2005Ha, 1517) Supreme Court Decision 2009Da53 Decided September 24, 2009 (Gong2009Ha, 1783)

Head of Busan Metropolitan City Gun (Attorney Lee Jong-soo, Counsel for defendant-appellant)

Busan District Court Decision 201Na14146 delivered on May 1, 201

October 16, 2014

The re-resolution made by the Defendant on August 9, 2013 with respect to the “wholly amended Ordinance of the Ordinance of the Ministry of Patriots and Veterans in Busan Metropolitan City” has no effect. The litigation cost shall be borne by the Defendant.

The same shall apply to the order.

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

The following facts may be acknowledged in full view of the contents of evidence Nos. 1 through 4 above, and the purport of the whole pleadings.

A. On July 5, 2013, the Defendant passed a resolution on the amendment of the Ordinance on the Partial Amendment of the Book-gun, Busan Metropolitan City (hereinafter “instant Ordinance”) proposed by a member affiliated with the Defendant, and transferred it to the Plaintiff. As to this, the Plaintiff demanded reconsideration from the Defendant on July 25, 2013 on the ground that the instant Ordinance was in violation of the statutes, but the Defendant re-resolutioned the instant Ordinance on August 9, 2013.

B. The purpose of the Ordinance is to prescribe matters necessary for the publication of the Gun newsletter in Busan Metropolitan City in order to enhance the public relations of the military administration and efficiently perform the military administration (Article 1). In order to efficiently perform the affairs of issuing the military newsletter, the Compilation Committee shall be established (Article 6); the Committee shall take charge of the overall affairs concerning the publication of the military newsletter, including one chairperson and one vice-chairperson, and the Committee shall be composed of not more than 13 members including 13 members, and the Committee shall be recommended by the Committee, and the Committee shall be appointed or commissioned by the head of Gun from among Grade 5 public officials of the Gun, two members of the Gun Council, and persons with extensive knowledge and experience in the publication of the military newsletter and two members of the Gun Council (Article 8(1) and (2)).

2. Whether the Ordinance of this case violates the law

According to the Local Autonomy Act, the executive organs and local councils of local governments are separated from each other to exercise their own authority within the scope of mutual checks, but the local council is not allowed to actively intervene in the exercise of the other party’s own authority within the scope of checks (see Supreme Court Decision 2001No. 64, Dec. 11, 2001). In addition, in full view of the provisions of Articles 101, 103, 112, and 127 of the Local Autonomy Act, Articles 5, 7, and 36(2) of the Regulations on Administrative Bodies, Standards for the Quota, etc. of Local Governments (hereinafter “Administrative Organization Regulations”), the Local Autonomy Act requires the head of the local government to establish an administrative organization within the scope of checks with respect to the exercise of the other party’s own authority, and actively intervene in advance, within the scope of checks (see Supreme Court Decision 200Du854, Feb. 8, 201).

In addition, in light of Article 116 of the Local Autonomy Act, the collegiate administrative agency, in which the basis for the establishment thereof was established, shall be the agency that the head of the local government takes partial charge of the affairs of the local government to be managed and executed by the head of the local government, and shall be independently carried out, even if it belongs to the executive agency or does not belong to the executive agency or is an independent third agency that does not belong to the local council, and in light of Article 3(1) of the Administrative Organization Regulation, the head of the local government shall have the right to organize the overall administrative agency belonging to the executive agency, and shall be deemed to include the right to propose the Ordinance for the establishment of the collegiate administrative agency. Therefore, it is reasonable to consider that the local council has the inherent authority to establish the collegiate administrative agency and such inherent authority shall include the right to propose the Ordinance for the establishment of the autonomous administrative agency. Therefore, making a resolution and re-resolution shall not be permitted

In light of the above legal principles and facts as seen earlier, the Defendant proposed and resolved the Ordinance of this case with the nature of a collegiate administrative agency as stipulated in Article 116 of the Local Autonomy Act, and re-resolutioned upon the Plaintiff’s request for reconsideration is in violation of the laws and regulations, since it actively participated in advance and infringed on the exercise of the matters belonging to the Plaintiff’s own authority.

3. Conclusion

The Ordinance of this case is in violation of the law and is unlawful, and if so, the re-resolution of the Ordinance of this case is denied in its entirety. Thus, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution of the Ordinance of this case is justified, 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 on the bench.

Justices Lee In-bok (Presiding Justice)