[1] Legal nature of an act of issuing a certificate by the head of a local government on an application for issuance of a certificate by the representative of petitioners for residents' voting under the Residents' Voting Act

[2] In a case where Gap et al. filed an application for issuance of a certificate of representative of the petitioner for the residents' voting to ask whether the medical center's business is commenced or not as to the closure and dissolution of the medical center through the residents' voting, but the Do Governor rejected the application, the case holding that the above disposition was unlawful

[1] In light of the forms of Article 10(1) and (2) of the Residents' Voting Act, the issuance of a certificate by the head of a local government on the application for issuance of a certificate by the representative of petitioners for the Residents' Voting is a binding act.

[2] In a case where Gap et al. applied for the issuance of a certificate of representative of the petitioner for the residents' voting to ask whether the medical center's business is commenced or not through the residents' voting for the closure and dissolution of the medical center, but the Mayor/Do Governor rejected such request, the case holding that the above proposal for the residents' voting shall be deemed to fall under the "matters concerning the establishment and management of major public facilities established to provide multiple residents for use," and the "major decision that has a significant effect on the welfare, safety, etc. of the residents" as stipulated in Article 7 (1) of the Residents' Voting Act and Article 3 (2) and 4 of the Gyeongnam-do Ordinance on the Residents' Voting, and that it is unfair to refuse the above application only on the ground that it is impossible for the Mayor/Do Governor to re-examine the medical center as the present situation, and thus, it cannot be deemed that there is a justifiable reason to refuse the application of the representative of petitioner Gap et al. for the residents' voting.

[1] Article 10 (1) and (2) of the Residents' Voting Act / [2] Article 7 (1) and (2) of the Residents' Voting Act, Article 10 (1) and (2) of the Local Autonomy Act, Article 14 (1) of the Local Autonomy Act

Plaintiff 1 and three others (Attorney Park Jae-hoon, Counsel for the plaintiff-appellant)

Do Governor (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

November 26, 2013

1. The disposition that the defendant issued to the plaintiffs on July 18, 2013 without issuing a certificate of representative of petitioners for residents' voting shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the respective descriptions of Gap evidence Nos. 1, 2, and 4 and the purport of all pleadings:

A. On February 26, 2013, the Defendant announced a policy to discontinue the ○○○ Medical Center (hereinafter “○○○ Medical Center”) established and operated by the Gyeongnam-do from 1983, and submitted a revised municipal ordinance to the Do Council on March 29, 2013, which deleted ○○ Medical Center in Article 2 of the “Ordinance on the Establishment and Operation of the Gyeongnam-do Medical Center” to the Do Council, and closed the ○○ Medical Center on May 29, 2013. Since the Do Council passed the above revised municipal ordinance at the plenary session on June 11, 2013, the Defendant promulgated it on July 1, 2013.

B. On July 12, 2013, the Plaintiffs, who resided in the ordinary south-do and engaged in social organization, filed an application for the issuance of a certificate of representative of petitioners to ask the Defendant whether ○○ Medical Center will commence business or not through the residents’ voting on closure and dissolution of ○○ Medical Center (hereinafter “instant proposal for residents’ voting”), pursuant to Article 10(1) of the Residents’ Voting Act (hereinafter “instant proposal for residents’ voting”).

C. On July 18, 2013, the Defendant rendered a disposition rejecting the issuance of a certificate of representative of petitioners for residents’ voting (hereinafter “instant disposition”) to the Plaintiffs on the following grounds.

Article 14 of the Local Autonomy Act and Article 7 of the Residents' Voting Act shall be a major decision of a local government which imposes an excessive burden on residents or has a significant impact on residents. However, the dissolution of the ○○ Medical Center was promoted on the grounds of the ○○ Medical Center’s involvement in personnel rights and management rights, the conclusion of a collective agreement that disregards the law, chronic persons, etc., and the ○○ Medical Center was conducted on July 2, 2007, when it is undergoing dissolution registration and liquidation procedures, and it is anticipated that the ○○ Medical Center will conduct a residents’ voting within the year even if it is not effective because it is impossible to resume the business. Therefore, it is anticipated that the ○○ Medical Center will conduct a residents’ voting even if it is subject to a residents’ voting due to its impossibility

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant disposition is unlawful for the following reasons.

1) The opening and closing of the ○○ Medical Center is a unique autonomous affairs of the Gyeongnam-do and constitutes a “major decision of a local government that imposes an excessive burden on residents or has a significant impact on residents” under Article 7(1) of the Residents’ Voting Act and thus constitutes a subject of residents’ voting.

2) If it becomes final and conclusive that ○○ Medical Center is re-scheduled through ○○○ Medical Center by ○○○’s residents’ voting, the Defendant is obligated to re-enter ○○ Medical Center. Therefore, the reason for disposition that ○○ Medical Center cannot re-enter ○○ Medical Center as a result of the registration of dissolution and the liquidation procedures is unreasonable. Moreover, the reason for disposition that ○○ Medical Center is excessive budget to conduct ○○○ Medical Center

3) There is no reason to view the proposal of this case as falling under “matters that cannot be referred to residents’ voting” under Article 7(2) of the Residents’ Voting Act.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) In light of the forms of Article 10(1) and (2) of the Residents' Voting Act, the issuance of a certificate by the head of a local government on an application for the issuance of a certificate by the representative of petitioners for the Residents' Voting is a binding act (see Supreme Court Decision 2007Du10556, Dec. 13, 2007). Therefore, the matters proposed by the plaintiffs are subject to the Residents' Voting, and the plaintiffs' application for the issuance of a certificate by the representative of petitioners for the Residents' Voting meeting the requirements under Article 10(1) of the Residents' Voting Act should be issued by the

2) On the ground that Article 14(1) of the Local Autonomy Act provides, “The head of a local government may put a local government to a referendum on the important matters of decision of the local government which causes an excessive burden to residents or has a significant impact on them,” and Article 7(1) of the Local Voting Act provides, “The issue of the above certificate may be put to a referendum on the matters prescribed by municipal ordinance of the local government, which are the major matters of decision of the local government which may give an excessive burden to residents or have a significant impact on them.” However, as seen earlier, the Plaintiffs applied for issuance of a certificate by the representative of petitioners for the local referendum rather than a request for the local referendum to the Defendant, and since this is a binding act, the Defendant

3) We examine whether the proposal of this case is subject to residents' voting.

A) Article 7(1) of the Residents' Voting Act provides that "major decisions of a local government which may excessively burden residents or have a significant impact on such local government may be put to the residents' voting." Accordingly, Article 3 of the Ordinance on the Residents' Voting provides that "matters concerning the installation and management of major public facilities to provide a large number of residents' use ( Subparagraph 2)" and "other important decisions that may impose an excessive burden on residents or have a significant impact on the welfare, safety, etc. of residents ( Subparagraph 4)" are subject to the residents' voting.

B) In the Act on the Establishment and Operation of Local Medical Centers (hereinafter “Act”) and the Ordinance on the Establishment and Operation of Gyeongnam-do Medical Center (amended by Ordinance No. 3832, Jul. 1, 2013), the following matters are stipulated:

(1) One of the two local medical centers established by the ○○ Medical Center for the purpose of contributing to the improvement of local residents’ health and the development of local health and medical services (Articles 1, 4(5) of the Act, and Articles 1 and 2 of the Ordinance).

(2) Important matters concerning the establishment, dissolution, and operation of a local medical center shall be determined by the Municipal Ordinance of the local government in advance by reviewing in advance the impact on local residents’ health promotion, local health and medical services, feasibility of the project, etc. (Article 4(4) and (5) of the Act).

(3) A local medical center’s duty is to conduct programs on public health care for local residents, such as the diagnosis and treatment of local residents, the control and prevention of infectious diseases and major diseases, health care programs for medical personnel, medical technicians, and local residents who are difficult to take charge of private medical institutions, the dissemination of medical knowledge and treatment techniques, and the implementation of policies on public health care by the State or local governments (Article 7(1) of the Act).

(4) The president of a local medical center shall be directly appointed by the head of the local government (Article 10).

(5) Local governments or the State shall provide subsidies necessary for the operation of local medical centers (Article 17); the Minister of Health and Welfare shall evaluate and diagnose the operation of local medical centers (Articles 21 and 22); and the head of a local government shall guide and supervise the duties of local medical centers (Article 23).

(6) If a person who is not a local medical center uses a similar name, such as a local medical center, there is a penal provision such as imposing an administrative fine (Articles 5 and 29).

C) In light of such relevant provisions, it is reasonable to regard the instant proposal as falling under “matters concerning the establishment and management of major public facilities established to provide multiple residents to use” and “major matters (Article 4) that have a significant impact on the welfare, safety, etc. of residents” under Article 7(1) of the Residents’ Voting Act and Article 3 subparag. 2 and 4 of the Gyeonggi-do Residents’ Voting Ordinance, and there is no circumstance to regard the instant proposal as falling under “matters that cannot be referred to as “matters that cannot be referred to as “matters that cannot be referred to as a residents’ voting” under each subparagraph of Article 7(2) of the Residents’ Voting Act.

D) Therefore, the instant proposal for the residents’ voting is subject to the residents’ voting (the Defendant is limited to some of the residents in Seocho-gu, such as Jinju, who are not the entire residents of the Do, and the private hospital takes 87% of the public interest by participating in the ○ Medical Service, and the closure and dissolution of ○○ Medical Center is limited to some of the residents using it, and does not fall under the subject of the residents’ voting because it does not cause excessive burden to all the residents of the Gyeongnam-do or has significant impact on it. However, ○○ Medical Center is a medical facility established to provide the public service to all the residents of the Gyeongnam-do under the Act and municipal ordinances, so long as it is the major public facility to provide the public service to all the residents of the Gyeongnam-do, it is reasonable to regard matters concerning the closure and dissolution thereof as subject to the residents’ voting. Even if the Defendant claimed, it does not change because the actual situation of use is limited

4) The grounds that the Defendant’s disposition grounds for the instant disposition (i.e., ① the necessity or feasibility of dissolution of the ○ Medical Center or the excessive budget for the ○○ Medical Center is not to be considered in the process of determining whether to issue a certificate of the representative of petitioners for the execution of the ○○ Medical Center, and (ii) in the event that the ○○ Medical Center was proposed by the ○○ Medical Center pursuant to the instant Do Do Do Do Do Do Do Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Gun Do Gun Do Do Do Gun Do Do Do Do Do

3. Conclusion

Therefore, the plaintiffs' claims are reasonable, and it is decided as per Disposition by admitting them.

[Attachment] Relevant Statutes: omitted

Judges Kim Maritime Shelf (Presiding Judge)