[1] Whether a local government may enact a municipal ordinance on the delegated affairs of an agency (negative with qualification)

[2] Whether the administrative affairs pertaining to the decision of creation of urban parks and the decision of modification fall under the delegated affairs of the agency (affirmative), and whether the local government can determine the delegation ordinance concerning the above administrative affairs (negative)

[3] Whether the head of a local government should hear the opinions of the local council when determining and changing a plan to create an urban park (negative)

[4] Whether the ordinance of the local government violates Article 7 (1) 5 of the Act on the Disclosure of Information by Public Institutions to the effect that a local government's urban park committee's meeting-related data and minutes should be disclosed without any restriction on the time of disclosure (affirmative)

[5] In a case where a part of the Ordinance is unlawful, whether the whole effect of the resolution is denied (affirmative)

[1] According to Articles 15 and 9 of the Local Autonomy Act, matters for which a local government may enact an autonomous ordinance shall be limited to autonomous affairs, which are the affairs inherent in the local government, and the affairs delegated to the local government under the individual laws and regulations, and the affairs delegated by the government to the head of the local government, in principle, shall not fall under the scope of the enactment of the autonomous ordinance. However, in a case where the delegated affairs of the local government are delegated to the head of the local government, the so-called delegation ordinance may be established to the extent that it

[2] Article 4 (5) of the Urban Park Act provides that the determination and alteration of a creation plan for an urban park shall be made by urban planning, and Article 12 (1) of the Urban Planning Act provides that the Minister of Construction and Transportation shall make the determination and alteration of a creation plan for an urban park. Thus, the affairs concerning the determination and alteration of a creation plan for an urban park shall be the State affairs, which are its unique duties of the Minister of Construction and Transportation. However, since a creation plan for an urban park is planned to specifically determine the kind, location and scope of park facilities for an urban park determined by urban planning, the determination and alteration of the above creation plan fall under the "decision and alteration of detailed facilities for an urban park" under Article 2 (1) 2 (b) of the Enforcement Decree of the Urban Planning Act, which are stipulated in the proviso to Article 12 (1) of the Urban Planning Act, and Article 12 (1) of the Enforcement Decree of the same Act provides that the determination and alteration of a creation plan for an urban park shall not be made by the Ordinance of the local government.

[3] The decision and modified decision on the creation plan for urban parks shall fall under the "decision and modified decision on detailed facilities for the facilities under Article 2 (1) 2 (b) of the Enforcement Decree of the Urban Planning Act" under Article 7-3 (1) 3 (a) of the Enforcement Decree of the Urban Planning Act, and shall be deemed to fall under the "minor alteration of urban planning" under the proviso of Article 12 (1) of the Urban Planning Act. Thus, when the head of the local government makes or modified decision on the creation plan, he does not need to hear

[4] If the meeting-related data and minutes of the committee are disclosed to the public after deliberation by the committee as to the matters to be deliberated upon by the committee under the ordinance on urban parks of local governments before the public announcement of the above matters, it would seriously hinder the fair performance of the duties. Thus, the meeting-related data and minutes of the committee shall be deemed information subject to non-disclosure under Article 7 (1) 5 of the Official Information Disclosure Act until the public announcement of the decision by the market et al. after deliberation by the committee is conducted. However, after the public announcement of the decision by the market et al., it shall not be deemed the matters in the decision-making process or internal review process, and it shall not be likely to interfere with the fair performance of the duties even if the data and minutes of the committee are disclosed. Thus, after the public announcement of the decision by the market et al., the above committee's meeting-related data and minutes shall be disclosed pursuant to Article 7 (2) of the same Act after the public announcement of the decision by the committee. Thus, if the above committee's meeting-related data and minutes should be disclosed without any restriction.

[5] If part of the bill is illegal as it is in violation of the law, the whole resolution of the bill shall be denied.

[1] Articles 9(1), 11, and 15 of the Local Autonomy Act, Article 117(1) of the Constitution / [2] Articles 4(5) and 30 of the Urban Park Act, Article 2(1)2(b) of the Urban Planning Act, Article 10(1) and 12(1) of the Urban Planning Act, Article 6(1)4 of the Enforcement Decree of the Urban Planning Act, Article 7-2 subparag. 3(a) and Article 60 of the Enforcement Decree of the Urban Planning Act, Article 3-2 subparag. 5 of the Enforcement Rule of the Urban Planning Act, Article 9(1), Article 15 of the Local Autonomy Act, Article 42 of the Enforcement Decree of the Local Autonomy Act / [3] Article 4(5) of the Urban Park Act, Article 2(1)2(b)2(b) of the Urban Park Act, Article 7(3)2 subparag. 4-2(a) of the Enforcement Decree of the Urban Planning Act, Article 7(3) of the Local Autonomy Act

[1] Supreme Court Decision 89Nu6846 delivered on July 27, 1990 (Gong1990, 1806), Supreme Court en banc Decision 92Du31 delivered on July 28, 1992 (Gong1992, 2575) 94Nu4615 delivered on July 11, 1995 (Gong1995Ha, 26397 delivered on November 14, 1995), Supreme Court Decision 94Nu13572 delivered on September 14, 197 (Gong196, 196No9799, 699) 95Da979799 delivered on December 16, 195 (Gong196, 669)

Seoul Special Metropolitan City Mayor (Seoul High Law Firm, Attorneys Park Sang-chul et al., Counsel for the plaintiff-appellant)

[Judgment of the court below]

April 25, 2000

A re-resolution of the Seoul Special Metropolitan City Ordinance on Urban Parks, which was made by the defendant on October 21, 1999, has no effect. Litigation costs shall be borne by the defendant.

1. Summary of the result of the reconsideration of the Ordinance of this case

The following facts may be acknowledged according to the statements in Gap evidence 1-1 to Gap evidence 6.

A. On April 21, 199, at the 112th extraordinary session of April 21, 199, the Defendant passed a resolution on the amendment ordinance of the Seoul Metropolitan City Urban Park Ordinance (hereinafter “the amendment ordinance of this case”) and transferred it to the Plaintiff on the 22th day of the same month. On May 8, 1999, the Plaintiff demanded reconsideration on the grounds that Articles 23(3) and 23(4) newly enacted among the amendment ordinances of this case are in violation of the law and regulations. On October 21, 1999, the Defendant made a re-resolution (hereinafter “the re-resolution of this case”).

B. The amendment bill of this case provides that "the Minister of Health and Welfare" under the proviso of Article 10 (1) 2 of the former Urban Park Ordinance (hereinafter referred to as the "Urban Park Ordinance") shall be "the Minister of Health and Welfare" and "the agenda of the Committee" under Article 23 shall hear the opinion of the Seoul Special Metropolitan City Council," and Article 23 (3) of the "the meeting-related data and minutes of the Committee shall be disclosed to the public." Article 20 of the former Park Ordinance shall be delegated to the plaintiff as the matters concerning the decision of the creation plan under Article 4 of the Act on Urban Parks (hereinafter referred to as the "development plan"), the matters concerning the creation plan formulated by the plaintiff or the head of the Gu ( subparagraph 1), and other important matters concerning parks ( subparagraph 3), and Article 23 (1) of the former Ordinance provides that "the Urban Park Committee (hereinafter referred to as the "Committee") shall be convened once a meeting of the Committee with the consent of a majority of all incumbent members, but a meeting of the Committee shall be convened from time to time when deemed necessary.

2. Summary of the plaintiff's assertion

The plaintiff asserts that Article 23 (3) newly established within the amendment ordinance of this case violates the proviso of Article 12 (1) of the Urban Planning Act, Article 7-3 (1) 3 (a) of the Enforcement Decree of the Urban Planning Act, and Article 15 of the Local Autonomy Act, and Article 23 (4) of the Official Information Disclosure Act (hereinafter referred to as the "Information Disclosure Act"), and therefore, the re-resolution of this case is invalid.

3. Whether the Ordinance of this case violates the Acts and subordinate statutes under Article 23(3)

A. According to Articles 15 and 9 of the Local Autonomy Act, matters for which a local government may enact the self-government ordinances are the autonomous affairs, which are the affairs of the local government, and the affairs delegated by the local government under the individual laws and regulations, and the affairs delegated by the government to the head of the local government, in principle, do not fall under the scope of the enactment of the self-government ordinances (see, e.g., Supreme Court Decisions 93Do144, May 10, 1994; 9Do30, Sept. 17, 1999). However, in the case of delegated affairs by an agency, where a local government delegates certain matters to the local government under the individual Acts and subordinate statutes, the so-called delegation ordinances may be established within the scope consistent with the intent of the individual Acts and subordinate statutes (see, e.g., Supreme Court Decision 9Do30, Sept. 17, 19

Article 23(3) of the Amendment Ordinance provides that the agenda of the Committee shall hear the opinions of the defendant. Here, the agenda of the Committee refers to the matters concerning the decision or modification of the creation plan, the matters concerning the formulation of the creation plan, and other important matters concerning the park, which are stipulated in Article 20(1) through (3) of the Park Ordinance as matters to be deliberated by the Committee.

However, Article 4 (5) of the Urban Park Act provides that the determination and alteration of a creation plan shall be made by urban planning, and Article 12 (1) of the Urban Planning Act provides that the Minister of Construction and Transportation shall make the determination and alteration of a creation plan. Thus, the affairs related to the determination and alteration of a creation plan shall be deemed to be the national affairs, which are its unique duties of the Minister of Construction and Transportation. However, since a creation plan is a plan to specifically determine the kinds, location, scope, etc. of park facilities concerning urban parks determined by urban planning (see Supreme Court Decision 97Da24481 delivered on September 4, 1998), the determination and alteration of a creation plan constitutes "the detailed determination and alteration of facilities for facilities under Article 2 (1) 2 (b) of the Enforcement Decree of the Urban Planning Act" in a plan which has not been determined "the determination and alteration of a creation plan under the proviso of Article 12 (1) of the Urban Planning Act, and therefore, it constitutes a delegation of the authority of the Minister of Construction and Transportation to the plaintiff.

Therefore, Article 23 (3) of the Amendment Bill of this case, which provides that the defendant shall hear the defendant's opinion, where the agenda items of the Committee are matters concerning the decision on the formation plan and the decision on the amendment of the plan, it is stipulated with respect to the delegated affairs of an agency, which is the state affairs, and it is in violation of Article 15 of the Local Autonomy Act beyond the scope of the enactment of the autonomous ordinance. Therefore, there is no room to acknowledge the validity of the autonomous ordinance as an ordinance. However, under the statutory provision, it can be recognized as a delegation ordinance only if there

However, Article 30 of the Urban Park Act provides that matters necessary for the establishment and management of urban parks shall be prescribed by the Municipal Ordinance of the relevant local government, but "matters necessary for the establishment and management of urban parks" refers to autonomous affairs under Article 9 (2) 4 (k) of the Local Autonomy Act, and the affairs related to the decision of creation plans and the decision of modification thereof shall not be applicable thereto. In addition, Article 42 of the Enforcement Decree of the Local Autonomy Act provides that local governments may establish advisory organizations within the scope of their competent affairs by Municipal Ordinance. However, in this context, the affairs of local governments refer to the delegated affairs of autonomous affairs and organizations, which are their own affairs, and are not included in the delegated affairs of agencies. Thus, Article 30 of the Urban Park Act and Article 42 of the Enforcement Decree of the Local Autonomy Act do not provide for the matters concerning the decision and modification of creation plans, which are delegated affairs of the relevant local government, and there are no other statutes that can be grounds for delegation. Thus, if the agenda items of the Committee are matters concerning the decision of creation or modification thereof, the Act cannot be recognized as a delegation ordinance.

B. Meanwhile, Article 12(1) of the Urban Planning Act, Article 7-2 subparag. 4, Article 7-3 subparag. 3(a) of the Enforcement Decree of the same Act, and Article 3-2 subparag. 5 of the Enforcement Decree of the same Act provide that when the Minister of Construction and Transportation determines or alters urban planning, he/she shall hear the opinions of the relevant local council with respect to urban planning facilities such as parks, etc., however, that Article 7-3 subparag. 3(a) of the Enforcement Decree of the Urban Planning Act shall not apply to any alteration of minor matters as stipulated in the proviso of Article 12(1) of the Urban Planning Act

However, as seen earlier, the decision and modified decision of the creation plan are subject to the "decision and modified decision of detailed facilities on the facilities as stipulated in Article 2 (1) 2 (b) of the Enforcement Decree of the Urban Planning Act" as stipulated in Article 7-3 (1) 2 (b) of the Enforcement Decree of the Urban Planning Act, and are subject to the "minor alteration of urban planning" as stipulated in the proviso of Article 12 (1) of the Urban Planning Act. Thus, when the plaintiff makes or modified decision on the creation plan, it is not required that he hear the defendant's opinion

Nevertheless, Article 23(3) of the Revised Ordinance stipulates that even in cases where the agenda of the Committee is about the determination or amendment of the formation plan, the defendant's opinion on the agenda of the Committee shall be heard without exception. Thus, this is contrary to the proviso of Article 12(1) of the Urban Planning Act and Article 7-3(3)(a) of the Enforcement Decree thereof.

C. Therefore, the Plaintiff’s assertion pointing out that Article 23(3) of the instant amended Ordinance violates Article 15 of the Local Autonomy Act, the proviso of Article 12(1) of the Urban Planning Act, and Article 7-3 subparag. 3(a) of the Enforcement Decree of the same Act.

4. Whether the amendment bill of this case violates Article 23 (4) of the amended Municipal Ordinance

Article 3 of the Information Disclosure Act provides that "Any information held and managed by a public institution shall be disclosed in accordance with this Act," and Article 7 (1) provides that "no public institution shall disclose information falling under any of the following subparagraphs," and subparagraph 5 provides that "information in the process of decision-making or internal review, which, if disclosed, has considerable reasons to be recognized as significantly impeding the fair performance of its duties."

However, after deliberation by the Committee on the matters to be deliberated by the Committee under Article 20 of the Park Ordinance, if the meeting-related data and minutes of the Committee are disclosed to the public prior to external announcement of the decision on the above matters, it would seriously hinder the fair performance of the duties. Thus, the meeting-related data and minutes of the Committee shall be deemed information subject to non-disclosure under Article 7 (1) 5 of the Information Disclosure Act until external announcement of the decision of the Plaintiff, etc. on the matters to be deliberated upon by the Committee after deliberation by the Committee is conducted. However, after external announcement of the decision of the Plaintiff, etc., it shall not be deemed the matters in the decision-making process or internal review process, nor shall the disclosure of the meeting-related data and minutes of the Committee be likely to interfere with the fair performance of the duties, since the external announcement of the decision of the Plaintiff, etc., after

Nevertheless, Article 23(4) of the amended Ordinance provides that the meeting-related materials and minutes of the Committee shall be disclosed without any restriction on the timing of disclosure, etc. Thus, this is against Article 7(1)5 of the Information Disclosure Act. The plaintiff's assertion pointing this out has merit.

5. As seen above, the draft amendment of the Municipal Ordinance of this case is in violation of the law and it is unlawful. In such a case, the whole resolution of this case shall be denied (see, e.g., Supreme Court Decision 96Do107, Oct. 25, 1996). Thus, the plaintiff's claim of this case shall be accepted as reasonable, and the costs of lawsuit shall be borne by the defendant who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)