[1] Scope and limitation of the local government's legislative power

[2] The method of determining whether the affairs required by the head of a local government under the law constitute autonomous affairs or delegated affairs of an institution

[3] Whether the affairs of the Mayor/Do Governor regarding the establishment and public announcement of construction plans for gas supply facilities by region and the approval of supply regulations for urban gas supply conditions constitute the delegated affairs of the agency (negative)

[4] The limitations of the enactment of ordinances concerning autonomous affairs of local governments

[5] Whether the Ordinance of the local government, which stipulates that a gas business operator may install a gas supply facility more than a certain size at the time of approval for a failure to install the gas supply facility under the gas supply plan, is in violation of the laws and regulations, which provides that the energy supply plan shall be revised so as to enable the gas business operator to install the gas supply facility more than a certain size, and the priority

[6] Whether the ordinance of the local government, which provides that the Mayor shall report to the City Council at the time of the establishment of a plan for the construction of gas supply facilities or the approval or amendment of a provision on supply conditions of urban gas supply, and hear opinions, is in violation of the law and regulations

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

[1] According to Article 117(1) of the Constitution and Article 15 of the Local Autonomy Act, a local government may enact an autonomous ordinance concerning its affairs within the scope of statutes, but in this case, the term "government affairs" refers to autonomous affairs of a local government under Article 9(1) of the Local Autonomy Act and the affairs delegated by an organization belonging to a local government under the statutes, and therefore, local government can enact an autonomous ordinance in principle, since it is limited to such autonomous affairs and affairs delegated by an organization. Thus, the State affairs are merely affairs performed by the head of a local government as a state agency, such as affairs delegated by the head of a local government, and cannot

[2] In determining whether the affairs prescribed by the head of a local government are autonomous affairs or delegated affairs of an agency, the form and intent of the relevant statutes shall be considered first, but in addition, whether the affairs require a nationwide uniform processing, the burden of expenses related thereto, and the subject of the ultimate responsibility shall also be considered.

[3] Comprehensively taking into account the relevant provisions, such as Articles 3, 9, 10, 11, 18, 18-3, and 20 of the Urban Gas Business Act, matters concerning the establishment and public announcement of construction plans for gas supply facilities, urban gas charges, and other supply conditions by district by the Mayor/Do Governor may be established by municipal ordinance as matters belonging to local government under the laws and regulations pursuant to Article 9 and Article 35(1)11 of the Local Autonomy Act. In certain cases, matters concerning the establishment and public announcement of construction plans for gas supply facilities by district, urban gas charges, and other supply conditions may not be deemed as affairs entrusted to the Mayor/Do Governor for national affairs, and it does not change the nature of urban gas construction plans and other supply conditions of urban gas supply facilities by district with only the provisions of Articles 18-2, 18-4(1), 20(3), 24(1), (2), 40, 40-3, and 41(1) of the Enforcement Decree of the same Act.

[4] Even if a local government may enact ordinances concerning its autonomous affairs as a municipal ordinance, it shall not be in violation of the upper law (Article 15 of the Local Autonomy Act), and unless there are special provisions, it shall not be in violation of the municipal ordinances concerning the inherent authority of the executive organs and the local council of the local government under the Local Autonomy Act. Furthermore, it shall not be permitted in essence as it violates the relevant provisions of the Local Autonomy Act to have the authority to execute the relevant affairs with respect to matters

[5] According to Article 18-3(1) and (2) of the Urban Gas Business Act and Article 30(2) of the Enforcement Rule of the same Act, a gas supply plan is prepared and submitted to the Mayor by a general urban gas business operator and includes a construction plan for gas supply necessary therefor. Although it is apparent that the construction plan for gas supply facilities by region for 2 years based on the supply plan is not a gas supply plan, it is unclear that a local government’s Ordinance for stabilizing the Supply of Urban Gas should revise the gas supply plan to the City Mayor. Furthermore, even though the above Ordinance can be seen as having the City Mayor modify the construction plan for gas supply facilities by region as originally established and announced to the City Mayor, it is unclear that the general urban gas business operator is obliged to install the gas supply facilities by means of construction plan for gas supply facilities by region established and announced to the City Mayor. Thus, the general urban gas business operator, even if the general urban gas business operator fails to install the gas supply facilities by changing the construction plan to an absolute distance from the construction plan for gas supply facilities in its planned and publicly announced area, can be excluded from installation of gas supply facilities without consideration.

[6] In the Ordinance on the Stabilization of Urban Gas Supply of Local Governments, when the Mayor intends to establish a gas supply facility construction plan under Article 18-3 of the Urban Gas Business Act, he/she shall make a report to the competent standing committee of the City Council. However, although it is a means to control the propriety of the construction plan before it is established, it shall be based on a two-year plan including the pertinent year, and it shall be established on the basis of the gas supply plan of the general urban gas business entity already submitted, and since there is no legal restraint such as the resolution or opinion of the City Council, it shall not be deemed to infringe on the unique execution rights of the head of the local government. In addition, even if the Mayor approves the supply regulations on urban gas charges and other supply conditions or requests a change within a considerable period of time under Article 20 (2) of the same Act, it shall first be examined prior to the prior review, and the opinion of the City Council shall also be made public. Thus, it shall not be bound by the law such as the approval or revision of the supply regulations to the City Council prior to its approval or the amendment.

[7] If some of the provisions of the Ordinance are violated by law and is unlawful, the re-resolution of the Ordinance shall be justified as a whole.

[1] Article 9 of the Local Autonomy Act, Article 15 of the Constitution, Article 117(1) / [2] Article 9, Article 10(1), Articles 11, 15, 93, 132 of the Local Autonomy Act, Article 18 of the Local Finance Act, Article 6 of the State Compensation Act, Article 117(1) of the Constitution / [3] Articles 3, 9, 10, 11, 18, 18-2, 18-3, 18-4(1), 20, 40, 40, 40-3 and 41 of the Constitution, Article 19 of the Local Gas Business Act, Article 5 of the Local Autonomy Act, Article 17 of the Local Gas Business Act, Article 19 of the Local Autonomy Act, Article 5 of the Local Autonomy Act, Article 19 of the Local Autonomy Act, Article 5-1 of the Local Autonomy Act / [3] Article 6(1) of the Local Gas Business Act

[1] [2] Supreme Court Decision 9Do30 delivered on September 17, 199 (Gong199Ha, 226) / [1] Supreme Court Decision 92Do31 delivered on July 28, 1992 (Gong1992, 2575), Supreme Court Decision 93Do144 delivered on May 10, 1994 (Gong1994, 1712), Supreme Court Decision 95Do32 delivered on December 22, 1995 (Gong196, 589), Supreme Court Decision 98Do40 delivered on April 13, 199 (Gong1999, 915) / [2] Supreme Court Decision 90Hun-Ga940 delivered on July 28, 1995 (Gong196, 589)

The Mayor of Incheon Metropolitan City (Attorney Fixed-ro, Counsel for defendant)

Incheon Metropolitan City Council (Attorney Kim Jong-sung, Counsel for defendant-appellant)

November 13, 2001

1. The re-resolution of the Ordinance Bill for Urban Gas Supply Stabilization, which was made by the defendant on July 5, 2001, has no effect. 2. The costs of lawsuit are borne by the defendant.

The reconsideration of the proposed bill of this case and its summary, etc.

According to Gap evidence 1 to Gap evidence 5-1 and 5-2, the following facts may be acknowledged:

A. On May 28, 2001, the Defendant passed a resolution of the Ordinance on Urban Gas Supply Stabilization (hereinafter referred to as the “Ordinance”). On June 15, 2001, the Plaintiff, upon the instruction of the Minister of Government Administration and Home Affairs, demanded reconsideration on the grounds that Article 4(2), Article 5(1), and Article 5(2) of the Ordinance of this case violated the superior laws, such as the Urban Gas Business Act and the Local Autonomy Act, and the Defendant re-resolutioned the same as the original bill at the fifth plenary session of July 92, 2001 (hereinafter referred to as the “instant re-resolution”).

B. Article 1 of the Ordinance of this case provides that "the purpose of the Ordinance of this case is to promote public safety by promoting the stable and balanced distribution and installation of urban gas supply facilities and facilities using gas (hereinafter referred to as "gas supply facilities") and by coordinating understanding between general urban gas business operators (hereinafter referred to as "gas business operators") and users (including users)." Article 4 (1) provides that "gas business operators shall, where they are unable to carry out construction of gas supply facilities pursuant to the Urban Gas Business Act (hereinafter referred to as the "Act"), request approval from the Mayor at least six months prior to the corresponding year." Paragraph (2) provides that "Where approval is granted under paragraph (1), the Mayor shall first consider many civil service areas of residents requesting the installation of gas supply facilities, when modifying a gas supply plan," and Paragraph (2) of Article 6 provides that "when the Mayor intends to hear opinions about the supply of gas supply facilities or modify the supply plan under Article 18-3 (2) of the Act, he/she shall report to the Standing Committee of the City under his/her jurisdiction."

2. Summary of the plaintiff's assertion

As the cause of the claim in this case, the Plaintiff asserts that, in light of the right to revise the gas supply plan under Article 18 of the Act, the right to approve the gas supply plan under Article 20, and the right to issue an order for adjustment under Article 40, etc., the State affairs that need uniformity on a national scale, or the authority delegated merely to the head of a local government in consideration of the special circumstances of the pertinent region, cannot be prescribed by ordinances of local governments. In addition, Articles 4(2), 6(1), and 6(2) of the Ordinance of this case violate the unique execution right of the head of a local government in advance and essential, and stipulate matters beyond the delegation scope of delegation under Article 18, the proviso to Article 18-3(2), Article 40 of the Act, and Article 40 of the Local Autonomy Act, which are superior laws and regulations, the re-resolution of this case for the enactment

3. Whether the Ordinance of this case violates the statutes

A. According to Article 117(1) of the Constitution of the Republic of Korea and Article 15 of the Local Autonomy Act, a local government may enact an autonomous ordinance concerning its affairs within the scope of statutes, but in this case, the term "government affairs" refers to autonomous affairs of a local government under Article 9(1) of the Local Autonomy Act and the affairs entrusted by an organization that belongs to a local government under the statutes, and therefore, local governments may enact autonomous ordinances in principle only to autonomous affairs and affairs entrusted by a local government. Therefore, the State affairs, such as those delegated to the head of a local government, are merely affairs performed by the head of a local government in the status of a State agency, and cannot be deemed affairs of a local government themselves, does not fall under the scope of the enactment of the autonomous ordinances in principle (see, e.g., Supreme Court Decisions 92Do31, Jul. 28, 1992; 95Do32, Dec. 12, 195). In order to determine whether a local government is autonomous affairs and affairs entrusted by a local government, the form and purport of statutes should be considered.

B. Comprehensively taking account of the relevant provisions, including Articles 3, 9, 10, 11, 18, 18-3, and 20 of the Act, the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do Governor (hereinafter “Mayor/Do Governor”) is the permitting authority for general urban gas business among urban gas businesses (the Minister of Commerce, Industry and Energy; the permitting authority for urban gas wholesale business) and does not take any form of delegation. The Mayor/Do Governor does not have the authority to establish and publicly notify an urban gas supply area to meet its characteristics. The imposition of fees for the permission, etc. or the cost of administrative affairs thereof belongs to the City/Do. Although a general urban gas business entity is specialized and technically and technically, the installation of gas supply facilities to be installed for urban gas supply by local governments, such as City/Do, cannot be deemed to have a technical and financial capacity. Although the regulations on the supply of urban gas have a direct impact on urban gas users, it does not necessarily have a uniform effect on urban gas users, but it does not necessarily have to have a reasonable distinction between general consumers and consumers at the level of location and distribution of gas charges.

Therefore, matters concerning the establishment and public announcement of construction plans for gas supply facilities by region of the Mayor/Do Governor, approval of supply regulations concerning urban gas charges and other supply conditions may be enacted by ordinances under Article 9 and Article 35(1)11 of the Local Autonomy Act as matters belonging to local governments under the jurisdiction of local governments, and in certain cases, matters may be determined by the resolution of the local council, and it shall not be deemed to be the affairs delegated to the Mayor/Do Governor as

However, the Minister of Commerce, Industry and Energy shall establish a five-year gas supply and demand plan including the relevant year, establish a long-term gas supply and demand plan covering at least ten years including the relevant year, announce its major contents thereof (Article 18-2 of the Act), exercise the right to approve the conclusion, etc. of export and import contracts of natural gas (Article 18-4 (1) of the Act), and with respect to approval of the above supply regulations of a general urban gas business entity, where it is deemed that the occurrence of imbalance in supply and demand of urban gas is likely to occur or it is necessary to improve the supply and demand of urban gas due to the inappropriate reasons for the supply regulations of the general urban gas business entity, he/she may require the Mayor/Do Governor to take necessary measures for the modification of the supply regulations (Article 20 (3) of the Act), and where the Mayor/Do Governor deems that there is a substantial concern that if the use of gas is not immediately restricted due to a temporary shortage of gas supply, it may restrict the use of gas to the users of gas or may order to restrict the use of gas supply facilities within necessary extent (Article 14).

C. However, even if a local government may enact its autonomous affairs by municipal ordinance, it cannot be in violation of the upper law (Article 15 of the Local Autonomy Act), and barring any special provision, it shall not be in violation of municipal ordinances with respect to the inherent authority of the executive organs and local councils of the local government under the Local Autonomy Act. Furthermore, a local council’s fundamental violation of the enforcement authority concerning the execution of its affairs may not be permitted as it violates the relevant provisions of the Local Autonomy Act (see, e.g., Supreme Court Decisions 200Da67, Feb. 23, 200; 99Da92, Jun. 13, 2000; 200Do36, Nov. 10, 200).

Article 18-3 of the Act provides that "the Mayor/Do Governor shall formulate and publicly announce a construction plan for gas supply facilities by area for two years including the relevant year by the end of March every year based on a gas supply plan submitted by a general urban gas business entity pursuant to Article 18 (1). The same shall also apply to any modification to such plan." Paragraph (2) provides that "the general urban gas business entity shall install gas supply facilities according to the construction plan for gas supply facilities by area publicly notified pursuant to paragraph (1): Provided, That this shall not apply where there is any inevitable reason as prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy." Article 30 (2) of the Enforcement Rule provides that "the same shall not apply where a general urban gas business entity is unable to install gas supply facilities according to the construction plan for gas supply facilities by area."

Therefore, according to the above provisions, the gas supply plan is prepared and submitted by a general urban gas business operator and includes a construction plan for gas supply facilities necessary for the gas supply, and it is apparent that the construction plan for the gas supply facilities by region for two years based on the supply plan is not a gas supply plan for the two-year gas supply facilities. However, it is unclear that Article 4(2) of the Ordinance of this case requires the Defendant, the market owner, to revise the gas supply plan.

Furthermore, even though Article 4(2) of the Ordinance of this case can be seen as having changed the construction plan of gas supply facilities by region originally established and publicly announced to the Mayor, it is difficult to supply urban gas by using such facilities in accordance with Article 18-3(2) of the Act, and a general urban gas business operator is obligated to install such gas supply facilities. In the proviso of Article 18-3(2) of the Act and Article 30(2) of the Enforcement Rule thereof, where a general urban gas business operator is not able to install gas supply facilities according to the construction plan of gas supply facilities by region, he/she is unable to install such facilities as originally planned, or even if he/she fails to obtain road excavation permission, he/she should immediately remove such facilities (in cases where he/she plans to expand roads and pack within one year from the scheduled date of installation of gas supply facilities; 3. Where regional redevelopment plans are planned to be implemented); where it is deemed impossible to supply urban gas by using such facilities (4. Where it is determined that urban gas supply facilities are impossible due to unexpected difficulty). It is reasonable to exclude the construction plan from installation of gas supply facilities in essence.

D. Meanwhile, Article 6(1) of the Ordinance of this case provides that when the Plaintiff intends to establish a gas supply facility construction plan under Article 18-3 of the Act, it shall be reported to the competent standing committee of the City Council. However, although it is a means to control the propriety of the construction plan, it shall be subject to prior prior to the establishment, it shall establish a two-year plan including the pertinent year, and it shall be based on the gas supply plan of the general urban gas business entities already submitted, and it shall not be deemed that there is no legal restraint, such as the resolution or opinion of the City Council, and it shall not be deemed

In addition, even if the plaintiff approves the supply regulations on urban gas charges and other supply terms or requests a change within a reasonable period of time pursuant to Article 20 of the Act, it is prior to the prior review of whether the above supply regulations meet the standards under the subparagraphs of Article 20 (2) of the Act, and its review opinion is also a matter to be disclosed, and there is no legal restraint such as the demand for approval or modification of the supply regulations to be followed by the resolution or opinion of the City Council. Thus, Article 6 (2) of the Ordinance of this case provides that a report to the City Council prior to the request for approval or modification of the supply regulations shall be reported to the City Council before the request for approval or modification of the supply regulations, it shall not be deemed that the execution rights of the local government head are essentially infringed, and it shall not be deemed that the Minister of Commerce, Industry and Energy under Article 20 (

E. However, if some of the provisions of the Ordinance are violated by law and is unlawful, the re-resolution of the Ordinance shall be denied the validity of the entire resolution (see, e.g., Supreme Court Decisions 9Do85, May 30, 2000; 200Do36, Nov. 10, 2000; 9Do61, Dec. 12, 2000). As long as Article 4(2) of the Ordinance of this case violates the Act and subordinate statutes and is unlawful, the Plaintiff’s claim seeking the exclusion of the validity of the re-resolution of the Ordinance of this case is justified.

4. Conclusion

Therefore, the plaintiff's claim 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 Seo-sung (Presiding Justice)