207Guhap17953 The revocation of disposition to dismiss a member from a partnership

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The Jung-gu Seoul Metropolitan Council

September 19, 2007

October 24, 2007

1. The defendant confirms that the disposition against the plaintiff on May 8, 2007 against the plaintiff is null and void.

2. The costs of lawsuit are assessed against the defendant.

The primary purport of the claim is as shown in the text of the claim.

Preliminary claim: The defendant's disposition of expulsion against the plaintiff on May 8, 2007 shall be revoked.

1. Details of the disposition;

A. On May 31, 2006, the Plaintiff was elected as a Gu Council member of the Defendant Council (non-standing Council member) at the fifth nationwide City/Si/Gun election conducted on May 31, 2006.

B. The Plaintiff attended the meeting of the Committee on Welfare Construction for the 146th extraordinary session of the Defendant Council and tried to stop the petition related to the projects of housing redevelopment in the XX district area by delaying the review schedule by the chairman (A Council member), and attempted to stop the petition from the Party A’s seat in order to declare the meeting by delaying the review schedule for the next meeting, and the chairman tried to stop the petition from the Party A’s seat. In order for the chairman to not make a deduction of the doctor’s salary, the Plaintiff’s scam was laid down on the floor, the Plaintiff’s scam was laid down on his book, the Plaintiff’s scam was destroyed and damaged by the chairman’s scam, and then scamed with the chairman’s scam.

C. The above actions by the Plaintiff were reported along with the closed-circuit photographing screen on which the above actions by the Plaintiff were recorded through news of the case SBS (KS), EBS (S), ETN (YTN), and regional broadcasting.

D. On May 7, 2007, the Special Committee on Ethics of the Defendant Council held a meeting on the grounds that there is a direct interest as a result of the expulsion, and excluded the Plaintiff and A members on the ground that there is a direct interest as a result of the expulsion, and subsequently presented a request for disciplinary action against the Plaintiff submitted by five (5) members, etc. on April 2, 2007, and resolved on the expulsion of the Plaintiff through inquiries and discussions.

E. The defendant Council opened a plenary session on May 8, 2007, and the Speaker asked the Council members' opinions on the exclusion of the plaintiff and the Council members on the ground that there is a direct interest as a result of expulsion, and let the plaintiff and the Council members leave the place of the plenary session, and then presented a request for disciplinary action against the plaintiff and five Council members present the vote while five Council members present the vote.

A resolution of expulsion was made against the plaintiff (hereinafter referred to as "disposition of expulsion of this case").

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, Eul evidence 2, Eul evidence 4 through 6, Eul evidence 8, Eul evidence 13, Eul evidence 16-1 through 29, each of the descriptions and images

2. Whether the expulsion and resolution of this case is legitimate

A. Party’s assertion

(1) The plaintiff's assertion

According to Article 80 (2) of the Local Autonomy Act (amended by Act No. 8338 of Apr. 6, 2007; hereinafter referred to as the "Act"), the expulsion of a member of the local council should be approved by more than 2/3 of the incumbent members. Since there are 9 incumbent members of the defendant Council, the quorum necessary for the resolution for the expulsion against the plaintiff is 6. However, the resolution for the expulsion of this case is about 5 members who agreed with the resolution for the expulsion of the plaintiff. Since the five members who agreed with the resolution for the expulsion of the plaintiff were in violation of Article 80 (2) of the Act, and the degree of the violation is serious and obvious, the expulsion of this case is null and void. Even if the resolution for the expulsion of this case satisfies the prescribed quorum of the law, it is against the principle of equity in light of the circumstances of the plaintiff's speech and behavior, and thus, it is against the principle of proportionality and the principle of equity in terms of abuse of the plaintiff's discretionary power.

(2) The defendant's assertion

Article 62 of the Act provides that "the chairperson of a local council or a member of a local council shall not participate in the resolution on the agenda in which he/she has a direct interest with his/her spouse, lineal ascendants or descendants, or siblings." Since it is clear that the plaintiff and the member of a local council, who is the other party, who is the subject of the expulsion, have a direct interest in the result of the expulsion of this case, they fall under the subject of exclusion. The member subject to exclusion, who failed to participate in the resolution, shall be excluded from the number of the incumbent members, which serves as the basis for the quorum. The resolution on the expulsion of this case is legitimate on the ground that the plaintiff and the member of a local council, who are excluded from the incumbent members for the resolution on the expulsion of expulsion, have consented to not less than 2/3 of the incumbent members, and thus, the resolution on the expulsion of this case is legitimate. If a member subject to exclusion under Article 62 of the Act is not deemed to be removed from the incumbent members, the resolution on the expulsion of this case may become impossible if the quorum is substantially aggravated or many members.

(b) Relevant statutes;

The entry of the relevant Acts and subordinate statutes shall be as shown in attached Table.

C. Determination

(1) Whether a member subject to exclusion is excluded from the number of the incumbent members on which the quorum is based

(A) Article 80(2) of the Act provides that "An expulsion of a member of the local council must be approved by at least 2/3 of the incumbent members." The term "member of the local council" refers to a member who is selected as a member of the relevant local council and has the status of a member. Therefore, the number of incumbent members should be included in the number of incumbent members, as long as any member is unable to attend a meeting for any reason, except in the case of a vacancy due to a forfeiture of a member's qualification or in the case of a special provision in the local autonomy-related statute.

(B) Article 62 of the Act provides that "the chairperson or a member of the local council shall not participate in the proceedings of the local council with respect to a matter in which he/she has a direct interest with his/her spouse, lineal ascendants or descendants, or siblings: Provided, That a member may attend and speak at the council upon his/her consent," and Article 82 (2) of the Rules of the defendant's Meeting provides that "no member may attend the plenary session or the committee concerning his/her disciplinary action, but he/she may vindicate himself/herself or have another member make a vindication for himself/herself with permission of the chairperson or the committee chairperson," and Article 62 of the Local Autonomy Act and Article 82 (2) of the Rules of the defendant's Meeting shall only be interpreted to the effect that he/she intends to ensure fairness in proceedings by preventing the relevant member from participating in the agenda in which he/she has a direct interest with the relevant member, such as a disciplinary action, and it shall not be interpreted that a member subject to exclusion from the council member is not subject to any special exclusion from the voting rights of the council member.

(C) In addition, in the case of expulsion where the legislative intent of Article 80(2) of the Act is to lose the qualification of a local council member elected by the resident's vote, more carefully than the general agenda, and it is necessary to make a decision more carefully. Considering that the general quorum of the local council requires more strengthened special quorum (the attendance of the National Assembly members and the affirmative votes of a majority of the Assembly members) than the general agenda, even though Article 62 of the Act makes the result substantially increased by the quorum of the National Assembly member is impossible or more than the general quorum of the National Assembly member, it cannot be concluded to be unfair in violation of the legislative purpose of Article 80(2) of the Act, even if the quorum of the National Assembly member under Article 62 of the Act is not possible, or where the number of the National Assembly members is more than the general quorum of the National Assembly member, as alleged by the defendant, if it is interpreted that the number of National Assembly members subject to expulsion is excluded from the list of National Assembly members, it is likely that the special quorum of the National Assembly member will would be dismissed than the general quorum.

(D) He returned to the instant case and thereafter, he was nine members of the Defendant Council at the time of the resolution for expulsion of the instant case, and the Plaintiff and a member of the Defendant Council retired from the plenary session prior to the submission of the instant request for disciplinary action in accordance with the decision of exclusion of the Defendant Council. The fact that only five members present at the plenary session at the time of the submission of the instant request for disciplinary action to the plenary session is no dispute between the parties. Therefore, the resolution for expulsion against the Plaintiff requires the consent of more than 2/3 of the nine members of the Defendant Council. However, as seen above, the resolution for expulsion of the instant case was made only by five members of the Defendant Council, and it is unlawful because the resolution for expulsion of the instant case falls short of the quorum stipulated in Article 80(2) of the Act, and it is obvious that the degree of illegality is serious and obvious.

(2) Judgment on the defendant's assertion

In order to determine who is subject to exclusion in the process of deliberating on the case of request for disciplinary action against the plaintiff, the defendant argued that the Special Committee on Ethics of the defendant's Council held on April 17, 2007, that the chairperson B, according to the theory of administrative autonomy, if excluded pursuant to Article 62 of the Local Autonomy Act, is excluded from the registered members, the plaintiff himself/herself shall be excluded from the registered members, and that the plaintiff himself/herself shall be excluded from the registered members, and that A member shall also be excluded from the voting.

The number of members who agreed to the resolution of the expulsion of this case is five because they did not attend, and the plaintiff asserts that the resolution of the expulsion of this case is null and void without the consent of six members is contrary to the good faith principle.

On the other hand, the defendant Council, or the Special Committee on Ethics should determine whether a member subject to exclusion is excluded from the number of the incumbent members, which serves as the basis for the quorum, and whether a member subject to exclusion is a member subject to exclusion, depending on the accurate interpretation of the relevant laws and regulations. Thus, the plaintiff's assertion that a member of the Special Committee on Ethics should be excluded from the plaintiff at a meeting of the Special Committee on Ethics, it is hard to see that the plaintiff, the other party, provided a new belief to the defendant, or that the defendant was in a legitimate state due to the objective view, and that the defendant's assertion that the resolution on expulsion of this case was invalid because the plaintiff failed to meet the quorum under Article 80 (2) of the Act, even if it is difficult to see that the resolution on expulsion of this case was not permissible in light of the concept of justice, and therefore, this part of the defendant's assertion is also without merit.

3. Conclusion

Therefore, the plaintiff's primary claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge shall transfer the number of judges

Judges fixed-scale

Judges Lee Dong-young

Relevant laws and regulations

Local Autonomy Act (amended by Act No. 8338 of April 6, 2007)

Article 62 (Exclusion of Chairperson or Member) The chairperson or member of a local council shall not participate in the agenda in which his/her spouse, lineal ascendants or descendants, or siblings have a direct interest: Provided, That where the Council consents, he/she may attend and speak at the Council meetings.

Article 78 (Causes for Disciplinary Sanction) If a member commits an act contrary to this Act or any municipal ordinances and rules, a local council may discipline him/her by resolution.

Article 79 (Request for Disciplinary Sanction)

(1) When a member subject to disciplinary action under Article 78 is requested for disciplinary action, the chairperson of a local council shall refer it to the Special Committee on Ethics or the plenary session.

(2) When a member who has been insultingd against an assemblyman violating the provisions of Article 75 (1) requests disciplinary action, he/she shall submit to the Speaker a written request specifying the fact of disciplinary punishment.

(3) In receipt of the request for disciplinary action under paragraph (2), the Speaker shall refer it to the Special Committee on Ethics or the plenary session.

Article 80 (Types and Resolutions of Disciplinary Action)

(1) The types of disciplinary action shall be as follows:

4. Expulsion.

(2) Expulsion shall require the approval of two-thirds or more of all the registered members.

Article 81 (Meeting Rules concerning Disciplinary Measures) Matters necessary for disciplinary measures other than those prescribed by this Act shall be prescribed by the meeting rules.

Jung-gu Seoul Metropolitan Council Meeting Rules

Article 82 (Examination and Defenses for him)

(1) The Special Committee on Ethics may have the person to be disciplined and related assemblymen attend to interrogate them via the Speaker.

(2) No assemblyman may attend the plenary session or committee for the disciplinary proposal, but he/she may vindicate himself/herself or have another assemblyman make a vindication for him/her with the permission of the Speaker or chairman.

Article 83 (Declaration of Results of Disciplinary Action)

1. When the Speaker receives a review report on disciplinary action from the Special Committee on Ethics, he shall immediately refer it to the plenary session and make a decision thereon.

(2) When a resolution on disciplinary action is adopted, the chairperson shall declare it at an open meeting.