[1] The first instance court of a lawsuit disputing a member's disciplinary decision of the local council (=the high court having jurisdiction over the seat of the local council)

[2] The case holding that it does not constitute a ground for disciplinary action under Article 34 (2) of the Local Autonomy Act in light of the contents and circumstances of the statement that a member of the Gu Council expressed a negative opinion against a member of the Gu Council who entered into a large supervisory contract with the Gu office

[1] A member disciplinary decision of the local council under the provisions of Articles 78 through 81 of the Local Autonomy Act may institute an administrative litigation against the High Court having jurisdiction over the meeting to which the member belongs without going through an administrative appeal, as a kind of administrative disposition directly affecting the rights of the council member.

[2] The case holding that it does not constitute a ground for disciplinary action under Article 34 (2) of the Local Autonomy Act in light of the contents and circumstances of the statement that a member of the Gu Council expressed a negative opinion against a member of the Gu Council who entered into a large supervisory contract with the Gu office

[1] Articles 9(1) and 18(1) of the Administrative Litigation Act; Articles 78, 79, 80, and 81 of the Local Autonomy Act / [2] Article 34(2) of the Local Autonomy Act

[1] Supreme Court Decision 93Nu7341 delivered on November 26, 1993 (Gong1994Sang, 210)

Plaintiff (Attorney Choi Yong-hoon, Counsel for the plaintiff-appellant)

The Songpa-gu Seoul Metropolitan Government Council (Law Firm Sejong, Attorney Kim Jae-chul, Counsel for defendant-appellant)

1. The plaintiff's main claim is dismissed.

2. On July 16, 1997, the defendant revoked the disposition of suspension of attendance for 30 days during one session against the plaintiff.

3. The costs of lawsuit shall be borne by the defendant.

On July 16, 1997, the plaintiff confirms that the disposition of suspension of appearance in court against the plaintiff on July 16, 1997 is null and void. Preliminaryly, the decision of Paragraph 2 of this Article is sought.

1. Details of the disciplinary action;

The following facts are either disputed between the parties, or acknowledged in light of the whole purport of the pleading as stated in Gap evidence Nos. 1, 2, 3, 6, 7, Gap evidence Nos. 4 and 5, and Eul evidence Nos. 1, 2, and 1 through 7, and there are no other objections.

A. On May 25, 1997, the newspaper on May 25, 1997, which is a local newspaper of Songpa-gu Seoul Metropolitan Council, is a member of the defendant Council representing the 6 Dong of Songpa-gu Seoul Metropolitan Council. The newspaper on May 25, 1997, referred that "the possibility of fair parliamentary activities" would be "the fair will activities would be impossible if a member of the plaintiff council is entrusted with supervision", and that the council member of active duty service could not become a member of the service company, regardless of how the supervisor selection method should be adopted. The fact that the council member of active duty service is entrusted with the construction exceeding one billion won in the city, following the presidential council member of Songpa-gu and the local council member of active duty service, was interpreted as the front place to withdraw local autonomy, and that the local government sent a close learning to the member of the dong Council that was on the end of the public opinion."

B. Regarding this, Nonparty 17, who is the cause of the Defendant Council, submitted a written consent for disciplinary action (No. 2-2) to the Speaker of the Defendant Council, on May 28, 1997, 197, which is the recess period between May 26, 1997 and June 4, 1997, during the 55 extraordinary session (from May 26, 1997 to June 4, 1997, the recess period from May 7, 1997 to June 3, 1997). However, in the case of the said report, the construction supervision contract for Pungdong-dong 1 Group Reconstruction apartment was a contract with a private entrepreneur who is entirely unrelated to the Gu Council, claiming that the Non-Party 1, which is the cause of the same Gu, was an abuse of the Gu Council’s position, and caused damage to the Council’s dignity and the status of the Gu Council.

C. On June 4, 1997 at the plenary session of the Defendant Council, pursuant to Article 79 of the Rules of the Defendant Council (Evidence No. 1), the Defendant Council appointed 12 among the total members 42, and submitted the Plaintiff’s disciplinary consent to the disciplinary action to the said committee. The said committee, from June 23, 1997 to July 12, 1997, participated in the internal newspaper that reported the above articles on seven occasions, the director general of the city management office, the person subject to disciplinary action, and the Plaintiff, etc. of the Songpa-gu, who was the reporter of the internal newspaper that reported the article, and made an investigation into the contents of the Plaintiff’s statement, the purpose of the statement, etc., and prepared a written report on the qualification of disciplinary action against the Plaintiff on June 30, 1997 (Evidence No. 7) and made an examination of the Plaintiff’s dignity and the purport of the Plaintiff’s statement, and submitted the Plaintiff’s report on the grounds for disciplinary action against the Plaintiff and the Plaintiff’s report to the president.

D. On July 16, 1997, among the 56th extraordinary session period (from July 16, 1997 to July 22, 1997), the Defendant Council presented the Plaintiff’s consent to disciplinary action, and attended the Plaintiff and heard the Plaintiff’s personal remarks, and then omitted questioning and debate, and the Plaintiff violated the duty to maintain integrity and dignity as a member under Article 34(2) of the Local Autonomy Act in accordance with the contents of the disciplinary qualification examination report, 37 of the registered members present at 42 of the registered members and 25, 11, and 1 of the registered members present at 30-day disciplinary action against the Plaintiff (hereinafter “instant disciplinary action”).

2. Whether the instant disciplinary action is lawful

A. The plaintiff's assertion

First, according to Article 78 of the Local Autonomy Act and Article 80 of the Rules of the defendant's Council, the chairman's referral to a disciplinary action against a member of the Gu shall be made within three days, excluding the period of closure or recess from the date a disciplinary cause occurs, the date a person to be disciplined is informed, the date a report is received from the chairperson, or the date a request is made under Article 79 (3) of the Council Rules, but the disciplinary action against the plaintiff is made after the lapse of the time limit for request for disciplinary action. Second, the contents reported to the local newspaper were followed by interview of the reporter, and the contents of the report were reported by the newspaper, and the above newspaper did not insult the non-party's constitutionality or impair his dignity as a member, and thus, the disciplinary action of this case was unlawful because the above newspaper did not cause disciplinary action, although it is extremely minor even if the above disciplinary cause is acknowledged, the disciplinary action of this case ordering the suspension of attendance for thirty days is deemed to hinder the plaintiff's affairs of the Gu, and thus, the defendant's grave and invalid and invalid and invalid.

B. Relevant statutes

Article 78 of the Local Autonomy Act provides that a local council may punish a member by resolution when he/she commits an act in violation of this Act or the meeting rules. Article 34 provides that a member shall be obliged to perform his/her duties in good faith and in good faith according to his/her conscience in preference to public interest in paragraph (1), Article 34 provides that a member shall not acquire any property right, interest, etc., or assist another person to acquire such right, interest, etc., by abusing his/her position in accordance with a contract or disposition with a local government, public organization, or enterprise, or by abusing his/her position in paragraph (3), and Articles 74 through 76 provide that a local council shall not maintain order in the meeting, prohibit statements, such as insult, and prohibit statements from interfering with the operation of the meeting, and Article 63 provides that a local council shall prescribe matters necessary for the operation of the meeting by the meeting rules. Article 80 provides that warning, apology at an open meeting, suspension of attendance within 30 days, and expulsion from attendance.

(c) Markets:

(1) Whether administrative litigation is filed against a disciplinary action

A member's disciplinary decision under the provisions of Articles 78 through 81 of the Local Autonomy Act is a kind of administrative disposition that directly affects the rights of a member, and thus has been subject to disciplinary action, a member may institute an administrative litigation with the high court having jurisdiction over the meeting to which he belongs without going through an administrative appeal (see Supreme Court Decision 93Nu7341 delivered on November 26, 1993). Thus, the plaintiff's lawsuit in this case is legitimate.

(2) Whether the disciplinary procedure is legitimate

Article 79 (1) of the Local Autonomy Act provides that a member subject to disciplinary action under Article 78 (Reasons for Disciplinary Action) of the Local Council Act shall be referred to the competent committee or the plenary session, and Article 79 of the Rules on Meeting of the defendant Council (hereinafter referred to as the "Rules on Meeting of the defendant Council") provides that the member subject to disciplinary action under Article 78 (Reasons for Disciplinary Action) of the Local Autonomy Act shall report it to the plenary session, and if there is any member subject to disciplinary action falling under Article 78 of the Local Autonomy Act, the Speaker shall submit to the plenary session a request stating the grounds for disciplinary action with the consent of at least 1/5 of all the National Assembly members, and the Speaker shall report it to the plenary session and refer it to the Special Committee on Qualifications for Disciplinary Action. In this case, Article 80 (1) of the Rules provides that the member may, if requested for disciplinary action, refer it to the plenary session within three days excluding the closing or recess period from the date on which the grounds for disciplinary action or discipline occurred, Article 81 of the Rules shall not be referred to the Speaker or other Special Committee.

The disciplinary action against the plaintiff was initiated on May 28, 1997 by the non-party 17 and the non-party 17 members' request for the consent of disciplinary action. The 55th extraordinary session period from May 26, 1997 to June 4, 1997 of the defendant Council was in recess period from May 27, 1997 to June 3, 197, and the defendant Council constitutes a Special Committee on Qualifications for Disciplinary Action against the plaintiff at the plenary session on June 4, 1997 and then submitted the disciplinary action against the plaintiff to the above Special Committee on June 5, 1997. According to Article 80 (1) of the Rules of the defendant Council, since the referral of disciplinary action to the defendant Council constitutes a special committee within three days excluding the period of request for disciplinary action, the chairperson of the defendant Council immediately referred the above disciplinary action to the special committee pursuant to the above rules of the defendant Council is without merit.

(3) Whether grounds for disciplinary action exist

According to the above-mentioned evidence, Gap evidence of Nos. 7 through 12, Eul evidence of No. 8 through 11, the following facts can be recognized, and no other counter-proof exists.

(A) On May 12, 1997, the Plaintiff asked on May 12, 1997, at the 54 extraordinary meeting of the Defendant Council, the head of Songpa-gu, the head of Kim Sung-sung and Kim Jong-sung, the head of Songpa-gu, for the construction of housing by forming the housing association, and the fact that the housing was elected by applying for the above 300 households or more housing construction work, the Plaintiff entered into a contract with the construction-supervising firm and the comprehensive specialized construction-supervising firm under the Construction Technology Management Act for the housing construction work. The above problem was designated as the chairman of the Defendant Council’s Urban Construction Committee, and the representative of the construction-supervising firm and the supervision firm under the Construction Technology Management Act, which was registered in the Songpa-gu Office, to which the owner of the housing construction project approved the housing construction project plan for the prevention of the defect in the housing construction project. The former amendment was made by designating the representative of the construction-supervising company and the supervision firm under the Construction Technology Management Corporation under the Construction Technology Management Act.

(B) On the other hand, the head of Songpa-gu local newspaper, which is the reporter of the "in-house newspaper", was designated by the Songpa-gu Office to conclude a supervision contract with the housing association. As to whether the above problem unconstitutional, which is the cause of the defendant council's local newspaper, is not an abuse of the position of the council member, the head of the Gu has filed a civil petition from the residents within the jurisdiction. The above two-mentioned owner, in order to hear the opinions of the council members on the supervision contract, visited the members of the defendant council by telephone, but did not contact with the other members, and responded to the opinion of the plaintiff as mentioned above. The housing association is bound to conclude a contract with the supervisor who is designated by the head of the Gu without the authority to select the other party of the supervision contract, so the supervisor can become an indirect contracting party by designating the supervisor even if the head of the Gu is not a party to the supervision contract, and the head of the Gu is in violation of the Local Autonomy Act Article 34 (3) of the Local Autonomy Act prohibiting transactions by the Gu council member.

According to the above facts, the plaintiff's statement was made under the judgment that it is inappropriate in view of the role of the Gu Council member that if a member of the Gu Council is a supervisor designated by the Gu office and is in charge of supervision, the member of the Gu Council should monitor the Gu affairs when the member of the Gu Council is in charge of supervision by concluding a design service contract with the Gu office without specifically ordering the name of the above unconstitutionality of the problem, which is the cause of the Dong affairs. In addition, as stated in the written consent for disciplinary action during the contents of the statement, the plaintiff did not make a statement that the above supervision contract is a contract abusing the position of the Gu Council member, and the above "in-house newspaper" was not reported. Further, the plaintiff did not actively express his opinion about the issue related to the supervision contract of the member of the Gu Council with the media company, but it did not express his opinion about the issue that the reporter of the local newspaper should report about the issue of damages to the conclusion of supervision contract with the Gu council member of the Gu council, as well as the opinion of senior academic circles and senior local governments, and the plaintiff's opinion in the local government.

Thus, the defendant's disciplinary action in this case does not constitute a ground for disciplinary action under Article 34 (2) of the Local Autonomy Act, which is a ground for disciplinary action, and thus, is illegal. However, in order for an administrative disposition to be null and void as a matter of course, the defect must be objectively and objectively obvious, and the defect in the disciplinary action in this case does not constitute a grave and obvious defect, and thus, the plaintiff's argument about the plaintiff's primary claim is not accepted.

4. Conclusion

Therefore, since the defendant's disciplinary action in this case is unlawful, it is revoked by accepting the plaintiff's preliminary claim, and the plaintiff's primary claim is dismissed as it is without merit, and the costs of the lawsuit are assessed against the losing defendant.

Judges Hong Il-il (Presiding Judge) For the purpose of shortest deposit