(영문) 대전지방법원 2012.11.28.선고 2012구합2971 판결

A. At the 183 extraordinary session held on June 29, 2012, the Defendant Council elected the Plaintiff as the chairman of the 6th second half of the Defendant Council.

B. On July 6, 2012, at the first plenary session of the Defendant Council’s 183th regular session, the Defendant Council proposed a resolution of non-Confidence for the following reasons (hereinafter “the resolution of non-Confidence”), and as a result, the Defendant Council made a resolution of non-Confidence for the Plaintiff with the consent of the majority of the incumbent members 8 and one invalid one (hereinafter “the resolution of non-Confidence”). (1) The Defendant Council made a resolution of non-Confidence for the Plaintiff with the consent of the majority of the incumbent members 10).

2) After winning the Speaker, the Council made it a direct circuit without performing the chair (hereinafter referred to as “non-Confidence 2”).

3) The words that were revealed after the process of the election of the Speaker and the election are considered to be morally unreasonable in carrying out the chairing position representing 300,000 U.S. residents (hereinafter referred to as “non-Confidence 3”).

[Ground of recognition] Unsatisfy, Gap evidence 1-1, 2, 3, 5-1, and the purport of the whole pleadings

2. Legal nature of the non-Confidence resolution of this case

A. The plaintiff's assertion 1) procedural defect A) although the non-Confidence resolution of this case was an unfavorable disposition that deprives the plaintiff of his/her design position, the plaintiff was made without prior notification to the plaintiff, and it was in violation of procedural defect.

B) The instant resolution was not indicated in the agenda items for which the non-Confidence was not notified in advance to the members, and the standing committee did not go through the proposal explanation, questioning and debate, and was passed without any discussion. This was unlawful as it was a procedural defect in violation of Articles 16, 20, and 25 of the Rules of the Defendant Council’s Meeting.

2) substantive defect.

The grounds for non-Confidence No. 1 cannot be the grounds for non-Confidence, and the grounds for non-Confidence No. 3 shall not be the grounds for non-Confidence because their contents are abstract. In the case of the grounds for non-Confidence No. 2, the Plaintiff’s election date from the date the Plaintiff was elected as the Speaker, and one week after the date the Plaintiff was elected as the Speaker, but the Council was not operated properly, and the reason was that the Plaintiff interfered with the plenary session which was trying to be held on July 2, 2012 from the side of the Governing Council members who were not elected as Vice-Speaker, and the quorum for the intention was not satisfied on July 3, 2012. Thus, it cannot be deemed that the Plaintiff created the Defendant Council’s plant circuit because the Plaintiff failed to perform his/her duties.

Therefore, the non-Confidence resolution of this case is unlawful as it was made without justifiable reasons of non-Confidence.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Determination as to the assertion that there was no prior notice and the opportunity to vindicate the procedural defect

On the other hand, Article 3(2)1 of the Administrative Procedures Act provides that the Administrative Procedures Act shall not apply to matters to be conducted with the resolution, consent or approval of the National Assembly or local council. Although the non-Confidence resolution of this case is a kind of administrative disposition that deprives the plaintiff of his authority as the chairperson (Supreme Court Order 94Du23 Decided October 11, 1994), it constitutes the resolution itself of the local council and it constitutes a case where the application of the Administrative Procedures Act is excluded in light of the purport of the above provision. Thus, the prior notice of Article 21 of the Administrative Procedures Act and the hearing of opinion under Article 22 of the Administrative Procedures Act are not applied, and there is no legal ground for the argument that the defendant Council should have provided the plaintiff with an opportunity to give prior notice and explanation in the resolution of non-Confidence of this case. Thus, this part of the plaintiff's assertion is without merit.

B) Determination on the assertion that the Defendant Council violated the meeting rules

Article 71 of the Local Autonomy Act provides that local councils shall prescribe necessary matters concerning the operation of meetings in addition to those prescribed by this Act, and the rules of meetings of the defendant Council (hereinafter referred to as the "Rules of Meeting") enacted by delegation of the rules of meeting of the defendant Council (hereinafter referred to as the "Rules of Meeting") stipulate matters necessary for the proceedings of the defendant Council.

Specifically, Article 16 (1) of the Meeting Rules provides that "the Speaker shall prepare the agenda items for the opening date, time, and division and distribute it to the Council members in advance", while Article 17 provides that "if the plenary session adopts a resolution with the consent of at least 1/5 of the incumbent members by a joint signature or if the Speaker deems it necessary, other agenda items may be added to the agenda items." Article 20 (1) provides that " When a bill is proposed or submitted, the Speaker shall print it to the Council and distribute it to the Council, report it to the plenary session, and refers it to the plenary session after the deliberation is completed by the competent standing committee," and Article 25 (1) provides that "the plenary session shall hear the proposer's explanation of the purpose in deliberation on the agenda item, and make a vote through questions and discussions."

The principle of majority in democracy is justifiable in that it makes a decision with a large number of opinions after undergoing open and reasonable discussions in the process of formation of a will. In making a decision at the local council which is the head of realizing democracy, the process and procedure in which members of the local council hear the explanation of the proposal on the agenda and derive an agreement through sufficient inquiries and discussions are more important than anything else. Therefore, if a resolution by the local council violates the above procedures prescribed by the meeting rules, the resolution shall be deemed unlawful.

As to this case, the following circumstances, i.e., ① the agenda for the 183 regular meeting of the Defendant Council, which is not included in the non-Confidence resolution of this case as the agenda to be discussed at the first plenary session. ② Nevertheless, the 183 regular meeting held on July 6, 2012, without going through the procedures for adding the non-Confidence resolution of this case to the agenda in accordance with Article 17 of the 183 regular meeting, the 19th regular meeting, which was held by the 197th regular meeting, the 5th regular meeting, which was held by the 197th regular meeting, was not the fact that the 6th regular meeting did not go through the deliberation of the non-Confidence resolution of this case; ④ the 00th regular meeting, without the explanation of the 10th regular meeting as to the 49th regular meeting, shall refer to the proposal of this case, which was in violation of the 5th regular meeting, to the 196th regular meeting.

The plaintiff's assertion on this part is with merit.

2) Determination on the assertion of substantive defects

Article 55 (1) of the Local Autonomy Act provides that "If the chairperson or vice-chairperson of a local council violates Acts and subordinate statutes or fails to perform his/her duties without justifiable grounds, a local council may pass a resolution of non-Confidence." On the other hand, Article 49 of the Local Autonomy Act provides that "the chairperson of a local council shall represent the local council, coordinate its proceedings, maintain order in the meeting of the local council, and supervise the affairs of the council." Thus, the grounds for non-Confidence for the chairperson referred to in Article 55 (1) of the Local Autonomy Act refers to a case where he/she violates Acts and subordinate statutes or fails to perform his/her duties

Each cause of the non-Confidence resolution of this case shall be examined as to whether the cause of the non-Confidence resolution of this case constitutes a legitimate cause of non-Confidence under Article 55 (1) of the Local Autonomy Act.

If the purport of the whole pleadings is added to the statements and images of evidence Nos. 1, 2, 3, and 3-2 of evidence Nos. 1-2, the plaintiff may recognize the facts that the plaintiff recommended several members to hold office as Vice-Speakers and requested support during the election of the chairperson. This seems to have been an act that could not be morally criticized as a member of the local council elected with the people's support. However, it cannot be deemed to constitute a violation of Acts and subordinate statutes in the course of performing their duties as chairperson or a failure to perform their duties without any justifiable reason. Thus, the reason of No. 1 cannot be deemed to constitute a legitimate reason for non-Confidence resolution.

B) Determination of No. 2

The facts that Defendant Council failed to properly operate from July 2, 2012 to July 6, 2012 are not disputed between the parties; however, if the purport of the entire pleadings is added to the evidence Nos. 3-1, 2, 3, and 4, the Plaintiff’s election after the Plaintiff was elected as Speaker at the extraordinary session No. 183, June 29, 2012, 105; 200 members were elected as Vice-Speaker (the Plaintiff was authorized to go to the Plaintiff for 200 members who were recommended by the Plaintiff to go to the Plaintiff during the election process of 20 days from July 2, 201, 200 to July 6, 2012; 200 members were to hold a meeting from July 2, 2012 to July 2, 2012; 300 members were to be held without any justifiable reason, and 200 members were to be held within the plenary session.

C) Judgment of No. 3

No. 3 is unclear as to what kind of words and acts of the plaintiff, and if it is about the part pointed out in No. 1 and No. 2, it cannot be viewed as an independent non-Confidence ground. Thus, it cannot be a legitimate ground for non-Confidence resolution.

D) Ultimately, the grounds for the instant non-Confidence resolution cited by the Defendant Council cannot be deemed to constitute a justifiable ground for non-Confidence resolution under Article 55(1) of the Local Autonomy Act. Thus, the Defendant Council’s non-Confidence resolution of this case cannot be exempt from its revocation due to its substantive illegality.

The plaintiff's assertion pointing this out is also justified.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges

Judges Kim Jong-ri

Gangwon-hee

Judges Jeon Jae-il

Note tin

1) Article 49 of the Local Autonomy Act provides for the duties of the Chairperson, and Article 55 of the Local Autonomy Act provides for the non-Confidence resolution

As a result, the 00 member seems to have made an erroneous statement on the ground of the non-Confidence resolution.