[1] Whether the head of a local government may file a lawsuit on the grounds of the violation of statutes pursuant to Article 98(3) of the Local Autonomy Act where the local council re-resolutions the Ordinance despite a request for re-resolution by the head of a local government

[2] Whether an ordinance that permits high-rise apartment construction in a Class-II general residential area violates Article 15(2)1 of the Enforcement Decree of the Urban Planning Act (affirmative)

[1] Article 19 (3) of the Local Autonomy Act widely recognizes the local government's right to request a reconsideration as one of the matters to be resolved by the local council. Thus, Article 98 (1) of the Local Autonomy Act generally recognizes the local government's right to request a reconsideration as a special provision concerning Article 98 (1) of the Local Autonomy Act. Thus, the head of the local government may file a lawsuit with the Supreme Court on the ground that the local government's re-resolution was made in accordance with Article 9

[2] A local government may enact a municipal ordinance concerning its affairs within the scope of statutes, but when the local council establishes a municipal ordinance concerning the prohibition and restriction of construction of buildings in a general residential area, it shall comply with the purpose of Article 17(1)1 and (2) of the Urban Planning Act and Article 15(1)1 and (2) of the Enforcement Decree of the same Act, which provides that a general residential area may be divided into Class 1, Class 2, and Class 3, and that Article 17(1)1 and Article 15(2) of the same Act, which provides that a general residential area may be designated by dividing the general residential area into Class 1, Class 2, and Article 17(2) of the same Act. Thus, although a Class 2 general residential area does not escape the scope of a place designated to create a residential environment centered on a tenement and low-rise apartment, it does not conflict with Article 15(2)1 of the Enforcement Decree of

[1] Articles 19(3), 98, and 159 of the Local Autonomy Act / [2] Articles 15, 19(3), and 98 of the Local Autonomy Act, Article 17(1)1 and (2) of the Urban Planning Act, Article 15(1) and (2) of the Enforcement Decree of the Urban Planning Act, Article 45(1) of the Building Act, Article 65(1)2 and (2) of the Enforcement Decree of the Building Act

Ansan Market (Law Firm Ho, Attorneys Kim Chang-chul, Counsel for the plaintiff-appellant)

Ansan-si Association (Law Firm Mine Name, Attorneys Lee Young-dae et al., Counsel for the plaintiff-appellant)

April 13, 1999

A re-resolution on the draft of the amended Municipal Ordinance among the Building Bylaws at Ansan-si on February 6, 1999 by the defendant shall not be effective. The costs of the lawsuit shall be borne by the defendant.

1. Circumstances and details of the re-resolution of this case

If Gap evidence Nos. 3, 4, and 5, Gap evidence Nos. 11-1, 2, and 12 showed all the arguments, the defendant passed a resolution on Nov. 7, 1998, and transferred it to the plaintiff on the day to the plaintiff pursuant to Article 19 (3) of the Local Autonomy Act on Feb. 6, 1999, but the defendant again passed a resolution on the revised bill to the defendant on Feb. 6, 1999; the revised bill can be acknowledged as being "multi-unit housing" under subparagraph (b) of Article 26-1 of the previous Ordinance among "a building allowed to be constructed in a Class-2 general residential area" under Article 26-1 (2) of the previous Ordinance (Provided, That apartment can be up to 10 floors, apartment houses can be up to 15 floors).

2. Determination on this safety defense

The defendant asserts that the plaintiff requested reconsideration to the defendant under Article 19 (3) of the Local Autonomy Act and there is no provision that can file a lawsuit with the Supreme Court as to the proposed ordinances re-resolutioned accordingly, so the lawsuit of this case is unlawful.

However, Article 19 (3) of the Local Autonomy Act widely recognizes the local government's right to request a reconsideration as one of the matters to be resolved by the local council, and thus, it is a special provision on Article 98 (1) of the Local Autonomy Act which generally recognizes the local government's right to request a reconsideration as the original bill. Thus, if a local government's bill is re-established as the original bill notwithstanding the request for reconsideration, the head of the local government may file a lawsuit with the Supreme Court on the ground that the local government violates the law of law and subordinate statutes

3. Judgment on the merits

A. Relevant statutes

Article 45(1) of the Building Act provides that prohibition and restriction of the construction of buildings within an area designated by the Urban Planning Act shall be prescribed by the Presidential Decree. Article 65(1)2 and (2) of the Enforcement Decree of the same Act provides that prohibition of and restriction on the construction of buildings within a general residential area may be prescribed by the Building Ordinance after being subdivided into Class 1 general residential area, Class 2 general residential area and Class 3 general residential area. In addition, Article 17(1)1 and (2) of the Urban Planning Act provides that the Minister of Construction and Transportation may designate a residential area to protect the well-being of residence and sound living environment within an urban planning area and re-designated as prescribed by the Presidential Decree. Article 15(1)1 of the Enforcement Decree of the same Act provides that a residential area may be subdivided into an exclusive residential area, a general residential area, or a quasi-residential area, and Article 15(2) of the same Act provides that a general residential area may be designated as a Class 3 general residential area to create a residential environment centered on detached houses (Article 1).

(b) Whether the amendment municipal ordinance violates any statute;

A local government may enact a municipal ordinance concerning its affairs within the scope of Acts and subordinate statutes, but when the defendant enacted a municipal ordinance concerning the prohibition and restriction of the construction of buildings in a general residential area, it shall comply with the purport of the Act and subordinate statutes allowing a general residential area to be designated by dividing into Class 1, Class 2, and Class 3, so that a general residential area may not escape from the scope of a place designated to create a residential environment centered on a tenement house and low-rise apartment. However, the draft of the amended municipal ordinance does not extend the scope of restrictions allowing construction of a 15th apartment even in a Class 2 general residential area, thereby bringing about a result that a Class 2 general residential area may lead to a high-rise apartment-centered residential environment centered on a high-rise apartment, which is in violation of Article 15(2)1

4. Conclusion

Therefore, the amendment bill is in violation of the law and its re-resolution is effective, so the plaintiff's claim is accepted, and the costs of the lawsuit are assessed against the losing party and it is decided as per Disposition.

Justices Shin Sung-sung (Presiding Justice)