2010Du13524 Demanding confirmation of illegality, etc.

Plaintiff 1 and three others

[Defendant-Appellee] Plaintiff LLC et al., Counsel for defendant-appellee

Seoul High Court Decision 200Na14888 decided May 1, 20

The head of Seodaemun-gu Seoul Metropolitan Government

Law Firm Woo-man, Counsel for the plaintiff-appellant

[Defendant-Appellee] Plaintiff 1 and 2 others

Seoul High Court Decision 2009Nu40584 Decided June 10, 2010

July 26, 2012

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the illegality of the composition of the Maintenance Deliberation Committee

Article 33 of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009; hereinafter referred to as the "Act") shall be paid to local council members for expenses for parliamentary activities, travel expenses, monthly allowances (hereinafter referred to as "expenses for parliamentary activities, etc.") and its payment standards shall be prescribed by municipal ordinances of local governments within the scope determined by the relevant local government as prescribed by Presidential Decree, and matters necessary for the organization, operation, etc. of the Deliberation Committee on Maintenance of Local Autonomy (Paragraph 2) shall be prescribed by Presidential Decree (Article 3). As such delegation, Article 34 (1) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008; hereinafter referred to as the "Enforcement Decree") provides for the composition of the Deliberation Committee on Maintenance of Local Council members; Article 33 (3) of the Act provides for the members commissioned by the head of each local government from among the members of the Local Council who are so recommended by the head of each local government and the Council.

Considering the purport of the Act and subordinate statutes and the purport of the Act as a separate deliberation and resolution body to present the criteria for the payment of parliamentary activities, etc. to be paid to local council members in advance prior to the determination of the scope of such determination, the purport of Article 34(1) of the Enforcement Decree stipulating that the members of the Deliberation Committee on Maintenance shall be recommended by academic circles, legal circles, press, civic groups, etc. when selecting the members of the Deliberation Committee on Maintenance and Improvement is to ensure diversity and objectivity of the composition of the Deliberation Committee on Maintenance and Improvement. Therefore, even if the procedures for the selection of members are not strictly consistent with the above provisions, it cannot be determined that the resolution of the Deliberation Committee on Maintenance and Improvement of the relevant agenda was unlawful, or that the Municipal Ordinance on parliamentary activities, etc. based thereon was unlawful, unless the procedure

According to the reasoning of the judgment below and the evidence duly admitted and examined by the court below, the committee for deliberation on the maintenance of the bill of this case has been composed of two academic circles, two legal circles, one press circles, one legislative circles, two economic circles, and two civic groups, and two of the 10 members have been selected as a deliberation committee by directly visiting and negotiating to the relevant organization without any procedure to obtain a recommendation from outside the academic community, etc.

In light of the above legal principles, although there is a defect to the extent that it has not gone through the formal recommendation procedure in the selection procedure of some members, the resolution made by the Deliberation Committee on the Maintenance of the Council in this case on the determination of the amount of parliamentary activity expenses, etc. for parliamentary activity expenses is unlawful, and furthermore, the Seodaemun-gu Seoul Metropolitan Government Ordinance on the Payment of parliamentary activity expenses for council members (Seoul Metropolitan Government Ordinance on December 207)

26. The amendment to the Ordinance by Ordinance No. 752 (hereinafter referred to as the "Ordinance of this case") shall not be deemed unlawful or invalid.

Nevertheless, the lower court deemed that it violated the procedure for the selection of a review committee member under Article 34(1) of the Enforcement Decree on the ground that it did not obtain the recommendation from an organization, etc. in the process of partially selecting a review committee member, and based on this, determined that the instant Ordinance, which was amended on the ground of the resolution of the review committee, was unlawful and invalid. In so doing, the lower court erred by misapprehending the legal doctrine on the defects in the procedure for the selection of a review committee member and its effect, thereby adversely affecting the conclusion of the judgment.

2. As to the violation of the quorum of the resolution of the Maintenance Deliberation Committee

As seen earlier, Article 33 of the Act delegates to the organization that presents the scope of determination of parliamentary activity expenses, etc. as an organization to be prescribed by municipal ordinances to determine matters necessary for the composition, operation, etc. of the Deliberation Committee on Maintenance. According to such delegation, the Enforcement Decree provides that ① The criteria for payment of parliamentary activity expenses, etc. shall be determined by municipal ordinances within the scope of the amount determined by the Enforcement Decree in consideration of the financial capacity, etc. of the relevant local government, and ② The Deliberation Committee on Maintenance shall make a resolution on the determination of the amount with the consent of a majority of the incumbent members, including the chairperson (Article 34(5)); ③ When the Deliberation Committee on Maintenance intends to determine the amount, it shall undergo public hearings to ensure the propriety and transparency of such determination, and procedures for collecting opinions of local residents, such as the investigation of residents’ opinions, etc. (Article 34(6)).

As such, the purpose of the Act is to limit the criteria for the payment of parliamentary activities to be paid to local council members by municipal ordinances to a certain amount (hereinafter referred to as "limit for parliamentary activities activities, etc."), and to separately define the procedure or scope to separately determine "limit for parliamentary activities, etc., such as the composition of the Deliberation Committee for Maintenance, and the organization of the Deliberation Committee for parliamentary activities, etc., and the scope to separately determine the criteria for the payment of parliamentary activities, etc. to meet the specific circumstances such as the financial capacity of the relevant local government. In the process, it is to ensure the appropriateness and transparency of the criteria for the payment of parliamentary activities, etc. by restricting the restriction to be determined by the Deliberation Committee

According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, on October 31, 2007, nine of the 10 members of the council of the council of the present case attended the fourth meeting and decided on the upper limit of parliamentary activity expenses, etc., and the chairman, even if there are different opinions inside the agenda at the meeting, proposed to make a unanimous decision after gathering each other's opinions, and the members of the council, without raising any particular objection, have discussed about the "limit of parliamentary activity expenses, etc.," which is an item of parliamentary activity expenses, etc., which is an item of parliamentary activity. The members of the council of the court of the present case followed the discussion on the "limit of parliamentary activity expenses, etc., which is an item of parliamentary activity, as set forth in 52,160,000 won annually, narrow their opinions as set forth in 52,740,000 won, and the chairman made a resolution with two proposals. The result of the resolution was finally made in the above amount of parliamentary activity.

In light of the above resolution process of the Deliberation Committee on Maintenance and Improvement of this case, since it did not clearly state that the resolution was made by unanimous resolution in the majority in the process of making a final declaration of the contents of the resolution, it can be deemed to have been in violation of Article 34 (5) of the Enforcement Decree, which provides that the resolution shall be made with the consent of at least 6 members, among 9 members present, and shall be made with the consent of at least 6 members present at the same time, but it is sufficient to see that the resolution was made with the unanimous opinion of 9 members present at the same time, on the other hand, the difference between the opinion divided into 48,33 won per month and 48,33 won per month, it is difficult to view that the above resolution of the Deliberation Committee on Maintenance and Improvement of this case has reached the extent of damaging the legislative purpose of the above Act, and therefore, it cannot be deemed that the above Municipal Ordinance was unlawful or invalid on the grounds that the above procedural defects were pointed out in the resolution process of the Deliberation Committee on Maintenance and Improvement of this case.

Unlike this, the lower court determined otherwise, that the instant Ordinance was unlawful and invalid in violation of the quorum prescribed by Article 34(5) of the Enforcement Decree of the Act, and furthermore, the instant Ordinance was also unlawful and invalid. In so doing, the lower court erred by misapprehending the legal doctrine on the defects and effects of the resolution of the Deliberation Committee on Maintenance, thereby adversely affecting the conclusion of the judgment.

3. As to the illegality of the decision on the "limit of parliamentary activity expenses such as parliamentary activity expenses by the Deliberation Committee on Maintenance

As seen earlier, Article 33(1) and (2) of the Act provides that the criteria for payment of parliamentary activities, etc. to be paid to local council members shall be determined by the Municipal Ordinance of the local government within the scope determined by the committee for deliberation on maintenance of the local government, as prescribed by Presidential Decree. As such delegation, Article 33(1) of the Enforcement Decree shall be determined by Municipal Ordinance within the scope of the amount determined by the committee for deliberation on maintenance of parliamentary activities, etc. in consideration of the financial capabilities, etc. of the relevant local government. The Committee for Deliberation on Maintenance of Speakers shall determine parliamentary activities and travel expenses within the scope of the amount prescribed in the attached Table regarding parliamentary activities and travel expenses (Article 1 and 2), and the monthly allowances shall be determined within the scope of "amount determined within the scope

According to the laws and regulations limit the amount of parliamentary activity expenses to be paid to local council members within the amount determined by the Deliberation Committee on Maintenance to ensure the objectivity and adequacy of the criteria for parliamentary activity expenses as prescribed by municipal ordinances, while presenting the criteria and procedures to be followed when the Deliberation Committee on Maintenance and Improvement makes a decision on the "limit on parliamentary activity expenses, etc." as well as the detailed and substantial criteria for the amount or calculation method, unlike parliamentary club expenses or travel expenses, and only lists the examples of certain considerations, such as the income level of local residents. Therefore, if the Deliberation Committee on Maintenance and Improvement has decided on the "limit on parliamentary activity expenses, etc., which are organized and autonomously made in accordance with the procedures prescribed by relevant Acts and subordinate statutes and regulations, even if there are some parts inconsistent with the result of the decision, it is merely a formal procedure to the extent that it is impossible to achieve the legislative intent of the Deliberation Committee which reflects the resolution of the Deliberation Committee on Maintenance and Improvement, and it cannot be deemed unlawful to make a decision on the "limit on parliamentary activity expenses, etc." made by the Deliberation Committee.

According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, ① in the course of determining “the maximum amount of parliamentary activities, etc. for parliamentary activities” for opening a meeting four times, the committee for deliberation on the maintenance of the council of Seodaemun-gu Seoul Metropolitan Government shall take into account the level of improvement in 2007 and the records of parliamentary activities, the rate of increase in remuneration by class of local public officials, the level of financial self-sufficiency, the income of local residents, the inflation rate, the purpose of introducing the paid system for local public officials, the status of the Gu council members for local public officials, etc., and ② in the fourth meeting, the amount calculated by taking into account the average amount of the payment standards (5,2740,000 won per annum) such as monthly allowances for other autonomous Gus in 208 and four family members' living expenses, financial self-sufficiency, parliamentary activities, etc. (5,21.60,000 won) as the final proposal. ③ Although the contents of the resolution were considerably increased compared with the increase rate of remuneration for local public officials, the amount of monthly remuneration.

Examining these facts in light of the legal principles as seen earlier, it is difficult to evaluate that the “limit on parliamentary activity expenses, etc. for parliamentary activity by the Deliberation Committee on Maintenance of the Agenda” was merely a formal process to the extent that it is impossible to achieve the purpose of legislation that reflects the resolution of the Deliberation Committee on Maintenance of the Agenda.

However, the court below determined that the decision made by the council of the council of the Speaker's Maintenance Council on the legitimacy of the decision on the "limit on parliamentary activity expenses, etc." on the basis of different criteria from the aforementioned legal principles as stated in its reasoning is in violation of Article 33 (1) 3 of the Enforcement Decree. Thus, the court below erred by misapprehending the legal principles on the legality of the decision on the "limit on parliamentary activity expenses, etc. of the council of Speaker's Maintenance Deliberation Committee", which affected the

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Yang Chang-soo

Note Justice Lee Sang-hoon