Whether it is permissible for the local council to make a resolution and re-resolution by proposing an amendment bill to convert the administrative body proposed by the head of the local government into another administrative organization as an ordinance (negative)

The Ordinance of the Local Autonomy Act provides that the head of a local government shall have the inherent authority to establish an administrative body necessary to manage and execute the affairs of the local government and the affairs delegated by the Acts and subordinate statutes as the representative of the local government, and the right to propose the Ordinance for this purpose. On the other hand, the local council shall have the authority to reduce and consolidate administrative bodies proposed by the head of the local government as an ordinance to check the authority to establish the administrative body of the head of the local government. Therefore, the resolution and re-resolution by the local council by proposing an amendment to change the types and affairs of the administrative body proposed by the head of the local government to other administrative bodies is not allowed as it actively intervene in advance

Articles 15, 94, and 102 of the Local Autonomy Act, Articles 6-2 and 24(2) of the Regulations on Administrative Bodies, Standards for Quota, etc. of Local Governments

Supreme Court Decision 2001Da57 Decided November 27, 2001 (Gong2002Sang, 182) Supreme Court Decision 2001Da64 Decided December 11, 2001 (Gong2002Sang, 308) Supreme Court Decision 2003Da13 Decided September 23, 2003 (Gong2003Ha, 2101) (Gong2004Ha, 1461) Decided July 22, 2004 (Gong2004Ha, 1461)

The head of Gwangju Metropolitan City North Korea (Attorney Park Jae-woo, Counsel for the plaintiff-appellant)

Gwangju Metropolitan City North Korean Council (Attorney Seo-gu, Counsel for the defendant-appellant)

July 8, 2005

The re-resolution of the amendment bill to the Ordinance on the Establishment of the Administrative Organization in Gwangju Metropolitan City, which was made on May 19, 2005 by the defendant shall not be effective. The costs of the lawsuit shall be borne by the defendant.

1. Results of the reconsideration of the amendment bill of this case;

In full view of the purport of the whole arguments in Gap evidence 1 through Gap evidence 7, Eul evidence 1, Eul evidence 2-1, and Eul evidence 2-2, the following facts can be acknowledged, and there is no reflective evidence.

A. On April 11, 2005, the Plaintiff submitted to the Defendant a partial amendment of the Ordinance on the Establishment of Administrative Organizations (hereinafter referred to as the “Amendments of this case”) with the content of converting the period of time under Article 6(1) of the "Seoul Metropolitan City Ordinance on the Establishment of Administrative Organizations" (hereinafter referred to as the "Ordinance of this case") and Article 2 of the Addenda into the Han-gu Residents' Self-Governing Province and the extra-governing Organization, and changing the name into autonomous policies.

B. On April 26, 2005, the defendant abolished the residents' autonomy and abolition of the amendment bill of this case, and proposed the amendment bill of this case (hereinafter "the amendment bill of this case") to establish the family welfare department as surplus organization, and passed a resolution thereon.

C. On May 10, 2005, the Plaintiff demanded the Defendant to reorganize the instant amendment on the grounds that the local council could not adopt and pass a resolution on the amendment of the Municipal Ordinance proposed by the head of the local government. However, on May 19, 2005, the said amendment became final and conclusive by re-resolution of the amendment as the original bill.

D. The main content of the instant amendment is to convert the term of existence into a non-permanent organization for the purpose of June 30, 2005 and to take charge of the affairs concerning residents' autonomy, Dong (Dong) administrative power, resident registration affairs, etc. (Article 6 (1), (2) 6, and 9 of the instant Ordinance) and to take charge of the affairs concerning the revitalization of residents' autonomy, matters concerning lifelong learning programs by changing the name into autonomous policies into the name of a non-permanent organization (Article 8-2 of the instant amendment), and to take charge of affairs concerning the promotion of residents' autonomy, matters concerning lifelong learning programs (Article 8-2 of the instant amendment). The amendment of the instant case is to abolish the residents' autonomy and abolition, and to newly establish the Family Welfare Department as a leisure organization to take charge of affairs concerning family welfare policies, matters concerning the development of policies to prepare for aging society (Article 8-2 of the amendment of the instant case).

2. Whether the amendment of this case has been violated in violation of statutes;

A. The main sentence of Article 15 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances with regard to their affairs within the scope of statutes." Since "within the scope of statutes" refers to "within the scope of statutes", it shall not be effective in cases where municipal ordinances enacted by local governments violate laws and regulations.

B. Therefore, we examine whether the amendment of this case violates the law.

(1) Under the Local Autonomy Act, the executive organs and local councils of local governments are separated from each other to exercise their own authority, but they are allowed to participate in the exercise of other party's authority within the extent of mutual checks. However, the local council is allowed to intervene passive and ex post facto within the extent of checks with respect to the exercise of the executive organs' own authority and not actively intervene in advance (see Supreme Court Decision 2001No. 64, Dec. 11, 2001); Articles 92, 94, 102, and 118 of the Local Autonomy Act; Articles 4, 6-2, and 24(2) of the Regulations on Administrative Bodies and Standards for Fixed Number of Local Governments (hereinafter referred to as the "Rules on Administrative Organizations"), and thus, the Local Autonomy Act requires the head of local government to actively propose an administrative body within the scope of the local council's own authority to establish and implement delegated by the Acts and subordinate statutes, and it is not permitted that the head of local government has the authority to propose an amendment to establish and amend the Ordinance.

(2) Examining the legal principles as seen earlier in light of the factual relations acknowledged earlier, inasmuch as the Plaintiff proposed the instant amendment to which the autonomous policy was established as a surplus organization to determine the duties of the autonomous policy and process the duties of the region as a unique administrative demand in the case of Gwangju Metropolitan City North Korea, as alleged by the Defendant, even if the duties of the family welfare department are the unique administrative demand of the region rather than the duties of the autonomous policy, the instant amendment to which the self-government policy was established as a surplus organization is reduced or merged with the autonomous policy as to the instant amendment, and as such, the re-resolution of the amendment to the contents of which the self-government policy and duties are newly established as a surplus organization with another family welfare department, is actively involved in the establishment of the administrative organization and the right to propose ordinances, which belongs to the inherent authority of the head of the local government, and is contrary to Article 15 of the Local Autonomy Act, Article 6-2 and Article 2

C. If so, the amendment of this case is unlawful as it is in violation of the laws and regulations, and in such a case, the re-resolution of the amendment of this case shall be denied in its entirety.

3. Therefore, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution of the amendment of this case is justified, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)