[1] The validity of a municipal ordinance enacted by a local government in violation of the statute and the standard for determining whether a municipal ordinance violates the statute

[2] The legislative intent of Article 123 of the Local Autonomy Act, which stipulates that the local council shall hear the opinion of the head of the local government when it intends to decide a municipal ordinance that entails a new financial burden, and the validity of the municipal ordinance enacted or re-decided in violation

[3] The case holding that the re-resolution of the Seocho-gu Seoul Metropolitan Government Council Ordinance that provides guidance and supervision by the head of a local government for the Seocho-gu Seoul Metropolitan Government Council shall not violate the Act on the Establishment and Operation of Public Interest Corporations or the provisions

[4] The requirements for a local government to be a public institution to which the local government may contribute and subsidize

[5] The case holding that the Seocho-gu Seoul Metropolitan Council members' association does not fall under the "public institutions under the Local Finance Act that local governments may contribute and subsidize, or the "organizations other than public institutions under the Local Finance Act that local governments may contribute and subsidize"

[6] The case holding that the Seocho-gu Seoul Metropolitan Government Council, which did not meet the requirements for receiving contributions and subsidies under Article 14 of the Local Finance Act and Article 24 of the Enforcement Decree of the same Act, shall be subject to a resolution of the Ordinance which provides that the local government may subsidize the expenses for the promotion and activities of the Council, which is illegal since

[1] Article 15 of the Local Autonomy Act / [2] Articles 19(3) and 123 of the Local Autonomy Act / [3] Articles 32, 37, and 38 of the Civil Act, Articles 4 and 12 of the Act on the Establishment and Operation of Public Interest Corporations, Article 24(3) of the Regulations on the Delegation and Entrustment of Administrative Authority / [4] Article 14 of the Local Finance Act, Article 24(1) of the Enforcement Decree of the Local Finance Act / [5] Article 14 of the Local Finance Act, Article 24 of the Enforcement Decree of the Local Finance Act / [6] Article 14 of the Local Finance Act

[1] Supreme Court Decision 2002Da23 decided Apr. 26, 2002 (Gong2002Sang, 1272) Supreme Court Decision 2003Da13 decided Sep. 23, 2003 (Gong2003Ha, 2101)

The head of Seocho-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for defendant-appellant)

Seocho-gu Seoul Metropolitan Council (Attorney Choi Tae-tae et al., Counsel for the defendant-appellant)

December 12, 2003

A re-resolution on the draft of the Seocho-gu Seoul Metropolitan Government Ordinance on the Establishment and Support of Seocho-gu Seoul Metropolitan Government Council, which was made by the defendant on December 21, 2001, shall not be effective. Litigation costs shall be borne by the

The same shall apply to the order.

1. The result of the reconsideration of the Municipal Ordinance;

According to the descriptions of Gap evidence 1-1, 2, Gap evidence 2-1 to 3, Gap evidence 3-1 and 2, the following facts can be acknowledged:

A. On October 16, 2001, the Defendant passed a resolution on the draft of the Seocho-gu Seoul Metropolitan Government Ordinance on the Establishment and Support of Seocho-gu Seoul Metropolitan Government Council Affairs (hereinafter referred to as the "Ordinance of this case") which mainly aims to research matters necessary for the development of the local autonomy system and the promotion of the welfare of the Seocho-gu Seoul Metropolitan Government residents, and transferred it to the Plaintiff.

B. On October 27, 2001, the provision that the Plaintiff may subsidize the expenses necessary for the parliamentary business and activities of the Council (Article 3) among the Ordinance of this case, which limits the recipients of subsidies, violates the provisions of Article 14 of the Local Finance Act, Article 24 of the Enforcement Decree of the same Act, and Article 118 of the Local Autonomy Act and Article 30 of the Local Finance Act, and Article 30 of the Local Finance Act are violated. When the local council intends to make a resolution to enact the Ordinance that entails new financial burden, it is not required to hear the opinion of the head of the local government in advance pursuant to Article 123 of the Local Autonomy Act, and it is not required to submit the business plan and budget of each fiscal year to the Plaintiff and obtain approval, and the provision that allows the Council to operate a profit-making business with the Plaintiff’s approval (Article 4) requires the Defendant to reissue the Ordinance as the original Ordinance of this case’s Article 4(3), 12(2), and 201 of the Act.

C. According to the ordinances finalized by the defendant, the Council shall aim at investigating and researching matters necessary for the development of the local autonomy system, the Seocho-gu Seoul Metropolitan Council, and the promotion of the public welfare of the Seocho-gu Seoul Metropolitan Government residents (Article 1); the Council shall be comprised of full-time members and full-time members of the Seocho-gu Seoul Metropolitan Council (Article 2(1)); (2) research and development of policies that may contribute to the development of the Council members; (3) research on the promotion of welfare, such as social welfare issues, environmental issues, and traffic issues, and other projects incidental thereto; and (4) The Council members shall be required to carry out projects necessary to achieve the objectives of the Council members' meeting (Article 3(1)); and (2) the Council members shall be required to submit a business plan and a business plan for each fiscal year to the plaintiff; and (2) the Council members shall be required to delete the budget bill (Article 2(1)2) of this case; and (4) shall be required to achieve the purpose of the amendment (Article 20(2) of this case).2).

2. Whether the defendant violated the provisions of the resolution passed again

The main sentence of Article 15 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances concerning their affairs within the scope of Acts and subordinate statutes," so it shall be null and void if municipal ordinances enacted by local governments violate Acts and subordinate statutes (see Supreme Court Decisions 2002Da23, Apr. 26, 2002; 2003Da13, Sept. 23, 2003, etc.). Whether municipal ordinances are in violation of Acts and subordinate statutes shall be determined individually and specifically on the basis of whether there is any inconsistency or conflict between the two, compared to the purport of the respective provisions of Acts and subordinate statutes, the purpose, contents and effects of the provisions, etc.

A. Whether Article 123 of the Local Autonomy Act is violated

The plaintiff asserts that the re-resolution of Article 3 (2) of the Ordinance without going through such procedures despite hearing the plaintiff's opinion in advance pursuant to Article 123 of the Local Autonomy Act when the defendant intends to adopt a municipal ordinance that entails a new financial burden violates the above Act.

However, Article 123 of the Local Autonomy Act, which provides that the local council shall hear the opinion of the head of the local government when it intends to resolve a municipal ordinance that entails a new financial burden, aims to ensure the planned and sound operation of the local government, and the purport of the provision is not necessarily to comply with the opinion of the head of the local government, and the head of the local government may demand reconsideration of the municipal ordinance decided by the local council pursuant to Article 19(3) of the Local Autonomy Act. In light of the above, even if the defendant enacted or re-established a municipal ordinance that entails a new financial burden without hearing the plaintiff's opinion in violation of Article 123 of the Local Autonomy Act, it cannot be immediately null and void, and therefore, this part of the plaintiff's assertion that the re-resolution in this case is invalid as it violates Article 123 of the Local Autonomy Act

B. Whether the Act on the Establishment and Operation of Public Interest Corporations is violated

The plaintiff asserts that the re-resolution subject to the resolution under Article 4 of the Ordinance on the Establishment and Operation of Public Interest Corporations, which grants such authority to the plaintiff despite the fact that the Council's business plan submission and approval for profit-making business of the same corporation as the Council's council members are the authority of the Seoul Special Metropolitan City Mayor, violates Article 4 (3) and Article 12 (2) of the Act on the Establishment and Operation of Public Interest Corporations,

In the case of a non-profit incorporated association or public-service corporation, permission for establishment, revocation thereof, and the authority to direct and supervise the affairs of the corporation shall be the competent administrative agency (Articles 32, 37, and 38 of the Civil Act). If a public-service corporation intends to engage in a profit-making business, it shall obtain approval from the competent administrative agency pursuant to Article 4 (3) of the Act on the Establishment and Operation of Public-Service Corporations, and pursuant to Article 12 (2) of the same Act, the business plan and budget shall be reported to the competent administrative agency before the commencement of each fiscal year, and the

On the other hand, the authority to permit, revoke, guide, and supervise the same corporation as the parliamentary council members is delegated to the head of the Seoul Special Metropolitan City Mayor (Article 24 (3) 13 (a) of the Regulations on Delegation and Entrustment of Administrative Authority). However, Article 4 of the Ordinance of this case only provides that the Council members shall submit the business plan and budget for each fiscal year to the plaintiff and obtain approval, and may engage in profit-making business with the plaintiff's approval (Article 2) (Article 4 of the Ordinance). However, since Article 4 of the Ordinance does not exclude the authority to guide and supervise the Council members under the Civil Act of the Seoul Special Metropolitan City or the provisions on the Establishment and Operation of Public Interest Corporations, Article 4 of the Ordinance can be interpreted as being merely a provision on the additional guidance and supervision by the head of the local government in addition to the authority to guide and supervise the Council members of the Seoul Special Metropolitan City Mayor. Thus, the re-resolution of Article 4 of the Ordinance cannot be accepted.

C. Whether the Local Finance Act is violated

The plaintiff asserts that the defendant's re-resolution of Article 3 of the Ordinance that provides for the plaintiff's expenses necessary for the business and activities of the parliamentary council violates Article 14 (1) of the Local Finance Act and Article 24 (2) of the Enforcement Decree of the same Act.

Article 14 (1) of the Local Finance Act provides that "No local government shall make a donation, grant a subsidy or make a disbursement of public funds to any individual or any organization other than a public institution except in cases falling under any of the following subparagraphs, 1. Where there is a provision in law, 2. where it is designated by the State with financial resources from the National Treasury, 3. Where it is a donation designated for the purpose of use, 4. Where it is deemed necessary for a project recommended by a local government, 4. Paragraph (2) of the same Article provides that "the scope of a project recommended by a public institution and a local government under paragraph (1) shall be prescribed by the Presidential Decree", and Article 24 (1) of the Enforcement Decree of the Local Finance Act provides that "the public institution" means a corporation or organization that operates a project recommended by a local government in connection with the performance of affairs under the jurisdiction of the local government and its purpose of establishment is an institution prescribed by Acts and subordinate statutes or by the ordinances of the local government", and Article 14 (2) provides that "where it is deemed necessary for a local government's project under its jurisdiction."

In full view of Article 14(1) and (2) of the Local Finance Act and Article 24(1) of the Enforcement Decree of the same Act, in order for a local government to be a public institution to be able to make contributions and subsidies, the local government shall be a corporation or organization engaged in a business recommended in connection with the performance of affairs under the jurisdiction of the local government, and its purpose and establishment shall be prescribed by Acts and subordinate statutes or by ordinances of the local government.

In light of Article 9 (2) of the Local Autonomy Act, since the purpose of the Council members' meeting is to investigate and research matters necessary for the development of the local autonomy system and the Seocho-gu Seoul Metropolitan Council members' public welfare, and to achieve the purpose thereof, the Council members' meeting is to carry out the projects stipulated in Article 3 (1) of the Ordinance for the purpose of achieving the purpose thereof, it may be deemed that the business belonging to the Seocho-gu local government members' meeting is carried out. However, since the purpose of the Council members' meeting and the business to be carried out are excessively abstract, comprehensive, and widely listed, it is not specified that the main purpose of the Council members' meeting is to carry out the business, and it is difficult to predict whether the Council members' meeting can actually carry out the business and the business will be carried out, especially as the representative of the Seocho-gu local government members' meeting, and the plaintiff, the executive body of which is the local government members' meeting seeks to establish the Council members' meeting or to control the business affairs, it does not constitute the grounds for the local government's re-resolution of the Ordinance.

Furthermore, in cases falling under any of the subparagraphs of Article 14 (1) of the Local Finance Act, local governments may make contributions and subsidies to organizations that are not public institutions. Thus, it is clear that the council members' meeting does not fall under any of subparagraphs 1 through 3 of Article 14 (1) of the Local Finance Act, and it does not fall under the business recommended by Seocho-gu in connection with the performance of affairs under the jurisdiction of Seocho-gu in Seocho-gu, the council members' meeting may carry out its business by collecting membership fees from its members, so it cannot be said that the council members' meeting can not carry out its business unless it grants subsidies. Accordingly, the council members' meeting does not fall under any organization that is not a public institution under the Local Finance Act that is able to make contributions and subsidies from local governments.

Therefore, since Article 14(b) of the Local Finance Act does not meet the requirements for receiving contributions and subsidies under Article 24(2) of the Enforcement Decree of the Local Finance Act, the re-resolution subject to resolution under Article 3(2) of the Ordinance of this case, which provides that the expenses for the projects promoted by the Council members and the activities of the Council members, shall be deemed to be unlawful as it violates Article 14 of the Local Finance Act and Article 24 of the Enforcement Decree of the same Act

3. Therefore, as long as Article 3(2) of the Ordinance of this case is unlawful, the re-resolution of the Ordinance of this case shall be denied in its entirety. Thus, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution shall be accepted for the reasonable ground, and the costs of lawsuit shall be borne by the losing defendant. It is so decided as per Disposition by the assent of all participating

Justices Jack-dam (Presiding Justice)