[1] In a case where a local council actively participates in the exercise of the right to appoint the head of a local government with regard to the dispatch of a local public official beyond the scope of mutual checks, whether the provision of the municipal ordinance violates the law (affirmative)

[2] The case holding that, in case where the Ordinance provides that local public officials belonging to the local government shall be dispatched to the above incorporated foundation in order to support the work of Gwangju Vienna, the head of the local government, and the local council shall determine their dispatch agencies and personnel and obtain the consent of the local council, and the local public officials belonging to the above incorporated foundation shall obtain the consent of the first local council held in the first time after the enforcement of the Ordinance after the enforcement of the Ordinance, the Ordinance is in violation of the Act and subordinate statutes allowing the local council to actively participate beyond the scope of simple checks through the procedure of consent

[1] The Local Autonomy Act grants independent authority to the head of a local government and the local council as an executive body in Articles 5 and 6, respectively, and the involvement of one party in the exercise of its authority is limited to securing mutual checks and balance. Thus, it is not in principle allowed to actively participate in the exercise of another party’s authority beyond the scope of such authority by municipal ordinances. According to Article 96 of the Local Autonomy Act and Article 6(1) of the Local Public Officials Act and Article 30-4 of the Local Public Officials Act and Article 27-2 of the Decree on the Appointment of Local Public Officials, which stipulate the appointment authority of the head of a local government for the dispatch of a local public official belonging to the local government, are clear that the head of a local government is also subject to the inherent authority of the head of a local government. Accordingly, it is ultimately contrary to the above statutory provisions that the local council actively participates in the dispatch beyond the scope of mutual checks.

[2] The case holding that the ordinance of the local government permits the local council to actively participate in the exercise of the right to appoint local public officials belonging to the head of the local government beyond the scope of simple checks through the procedure of consent, in case where the ordinance provides that local public officials belonging to the above foundation shall be dispatched to the above foundation in order to support the work of Gwangju Vienna, the head of the local government, and the local council shall obtain the consent of the dispatched agency and the local council, and the local public officials belonging to the above foundation shall obtain the consent of the first local council held after the ordinance became effective

[1] Articles 15, 35, 35-2, 36, 37, 37-2, 92, 93, 94, 95, 96, and 97 of the Local Autonomy Act, Articles 6 (1) and 30-4 of the Local Public Officials Act, Article 27-2 of the Decree on the Appointment of Local Public Officials, Article 117 (1) of the Constitution / [2] Articles 15, 35, 96, 98, and 159 (3) of the Local Autonomy Act, Articles 6 (1) and 30-4 of the Local Public Officials Act, Article 27-2 of the Decree on the Appointment of Local Public Officials, Article 117 (1) of the Constitution

[1] Supreme Court Decision 92Do31 delivered on July 28, 1992 (Gong1992, 2575 delivered on April 26, 1994) Supreme Court Decision 93Do175 delivered on April 26, 1994 (Gong194Sang, 1506) 96Do15 delivered on May 14, 1996 (Gong196Ha, 1893)

Gwangju Metropolitan City Mayor (Seocho Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)

Gwangju Metropolitan City Council (Attorney Seo-gu et al., Counsel for the defendant-appellant)

January 30, 2001

A re-resolution made by the defendant on December 2, 200 on the Ordinance of the Ministry of Gender Equality and Family among the Gwangju Metropolitan City Foundation, Gwangju Metropolitan City Foundation, Gwangju Metropolitan City Foundation, shall have no effect. Litigation costs shall be borne by the defendant.

1. Re-resolution of the amendment bill of this case

According to Gap evidence 1-1 to 3, evidence 1-2-1, evidence 2-2, and evidence 3-1 to 3-3, the defendant decided to amend the amendment bill of this case on November 7, 2001 and transferred it to the plaintiff on the 9th day of the same month, and the plaintiff demanded the defendant to re-examine on the 27th day of the same month because the supplementary clause 2 of Paragraph 2 of Article 6 was in violation of the Local Autonomy Act, but the defendant may recognize the fact that the amendment was made in the initial decision on December 2 of the same year.

2. Summary of the plaintiff's assertion

The Plaintiff asserts that, as the cause of the instant claim, each of the above provisions of the amended ordinances of this case is an ordinance violating the Local Autonomy Act, the Local Public Officials Act, and the Decree on the Appointment of Local Public Officials, the Plaintiff seeks to exclude the validity of the re-resolution of the amended ordinances of this case.

3. Whether the main issue of the instant case violated the statutes

Local Autonomy Act grants independent authority to the head of a local government and a local council as an executive body under Articles 5 and 6, respectively, and also allows the other party’s involvement in the exercise of its authority only to the extent necessary to ensure mutual checks and balance. Thus, in principle, allowing the other party to actively participate in the exercise of its authority beyond the said scope by Municipal Ordinance (see, e.g., Supreme Court Decision 96Do15, May 14, 1996).

However, according to Article 96 of the Local Autonomy Act, Article 6 (1) of the Local Public Officials Act, and Article 30-4 of the Local Public Officials Act, and Article 27-2 of the Decree on the Appointment of Local Public Officials, which provide for the dispatch of local public officials belonging to the head of the local government, as the contents of the authority to appoint the head of the local government, and Article 27-2 of the Decree on the Appointment of Local Public Officials, etc., it is clear that the head of the local government belongs to the inherent authority of the head of the local government. As such, the local council actively participates in excess of the scope of mutual checks is ultimately in violation of the above provisions of the above Acts and subordinate statutes (the defendant asserted that Gwangju Vienna, a foundation, cannot be deemed a dispatched institution or organization under the Local Public Officials Act, but it shall be included in the scope of the organization to which public officials are dispatched).

However, according to Gap evidence No. 5-1 and No. 2, Article 6 (2) of the revised bill of this case provides that the head of a local government who is the head of a local government shall dispatch affiliated local public officials to the above incorporated foundation in order to support the performance of the business affairs of Gwangju Foundation, the period of service and the number of local public officials shall be specified and the consent of the City Council which is the foundation of the local council shall be obtained. Paragraph (2) of the Addenda provides that local public officials who are already dispatched to the above incorporated foundation shall obtain the consent of the City Council at the first meeting held after the enforcement of the amended bill of this case as the Ordinance. The purpose of this provision is not to allow the local council to actively participate in the exercise of the right to appoint local public officials belonging to the unique authority of the head of the local government beyond the scope of simple checks through the procedure

Thus, under the above legal principles, this is an infringement on the exercise of the inherent authority of the head of a local government which is not allowed to be prescribed by municipal ordinances, and thus constitutes a violation of the above laws and regulations, and therefore, a re-resolution on the amendment bill of this case, the validity of which is to be recognized, shall not be recognized. The plaintiff's assertion

4. Conclusion

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

Justices Son Ji-yol (Presiding Justice)