[1] The meaning of "within the scope of a statute" under Article 22 of the Local Autonomy Act and the standard for determining whether the ordinances of local governments violate statutes and ordinances of local governments are in violation of statutes

[2] The case holding that the Ordinance which newly establishes a minor creation plan that is not necessary to obtain approval from the Mayor/Do Governor is in violation of the superior law by prescribing the contents not under Article 47 (1) of the Enforcement Decree of the Tourism Promotion Act

[1] The main sentence of Article 22 of the Local Autonomy Act provides that “Local governments may enact municipal ordinances concerning their affairs within the scope of statutes.” Here, “within the scope of statutes” refers to “within the scope of statutes,” and where municipal ordinances enacted by local governments violate the statutes, they shall not be effective. Furthermore, in comparison with the legislative intent of the statutes and municipal ordinances, the purpose and contents of the regulations, and effects thereof, it shall be determined individually and specifically depending on whether there exists inconsistency and promotion between the two.

[2] In a case where the Governor of Jeju Special Self-Governing Province requested reconsideration of the proposed municipal ordinance of Jeju Special Self-Governing Province with respect to the establishment of a minor creation plan that is not necessary to obtain approval from the Mayor/Do Governor, but the Jeju Special Self-Governing Province Council re-resolutions the proposed municipal ordinance as the original plan, the case holding that although Article 54 (1) of the Tourism Promotion Act stipulates that "minor matters" shall be prescribed by Presidential Decree, and Article 47 (1) of the Enforcement Decree of the same Act lists "minor matters" in subparagraphs 1 through 3 of Article 47 (1) of the same Act, it is invalid that the above proposed municipal ordinance does not violate the superior law and regulations.

[1] Article 22 of the Local Autonomy Act / [2] Article 54 (1) of the Tourism Promotion Act, Article 47 (1) of the Enforcement Decree of the Tourism Promotion Act, Article 229 (9) and Article 230 (1) 14 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City

[1] Supreme Court Decision 2002Da23 decided Apr. 26, 2002 (Gong2002Sang, 1272) Supreme Court Decision 2002Da16 decided Apr. 23, 2004 (Gong2009Sang, 656) decided Apr. 9, 2009

Jeju Special Self-Governing Province Governor (Attorney Do governor, Counsel for defendant)

Jeju Special Self-Governing Province Council (Attorney Park Ho-hoon, Counsel for defendant-appellant)

July 12, 2013

The re-resolution of the Ordinance on the Promotion of Tourism of Jeju Special Self-Governing Province, which was partially amended by the Defendant on July 28, 2011, is invalid. The costs of the lawsuit shall be borne by the Defendant.

The same shall apply to the order.

1. The details and details of the re-resolution of the proposed amendment ordinance of this case;

According to the descriptions of Gap evidence 1, Gap evidence 2-1, 2, 3, and 4, the following facts may be acknowledged:

A. On June 10, 201, the Defendant passed a resolution on the amendment of the Ordinance on the Promotion of Tourism of Jeju Special Self-Governing Province (hereinafter “instant amendment Ordinance”) under Chapter VI of the “Ordinance on the Promotion of Tourism of Jeju Special Self-Governing Province” at the second plenary session at the plenary session of 282, on July 4, 201, on the ground that Article 77-2(1)4 and (2) of the instant amendment Ordinance violates Article 229(6), (7), and (9) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Jeju Free International City (hereinafter “Special Act”), Article 54(1), (2), and Article 56(2) and (4) of the Tourism Promotion Act, and Article 47 of the Enforcement Decree of the Tourism Promotion Act, etc., and again requested the Defendant to make a resolution on the amendment of the instant Ordinance as of the same month. However, the Defendant made a resolution on July 29, 2018.

B. The Defendant added the proviso to Article 19(1)5 of the Act on the Approval, etc. of Implementation of Jeju Special Self-Governing Province Development Project on May 11, 201 to Article 19(1)5 of the Act on the Promotion of Tourism (Article 230(1)14 of the Special Act).

C. Article 77-2(1) of the Revised Ordinance provides that “The modification of minor matters” under the proviso to Article 19(1)5 of the Revised Ordinance on the Approval, etc. of the Implementation of Jeju Special Self-Governing Province refers to any of the following subparagraphs. Article 77-2(1)1 through 3 of the Revised Ordinance provides that “The same provision is applicable to Article 47(1)1 through 3 of the Enforcement Decree of the Revised Act, and Article 47(1)4 provides that “The modification is not provided for in Article 47(1) of the Revised Ordinance, which is not provided for in Article 47(1) of the Revised Ordinance.”

2. Whether the amendment ordinance of this case violates the statutes

A. The plaintiff asserts that the amendment bill of this case violates the law by stipulating different contents from those stipulated in the Enforcement Decree of the Tourism Promotion Act pursuant to Article 54(1) of the same Act.

B. The main text of Article 22 of the Local Autonomy Act provides that “Local governments may enact municipal ordinances with respect to their affairs within the scope of statutes.” Here, “within the scope of statutes” refers to “within the scope of statutes,” and where municipal ordinances enacted by local governments violate the statutes, they shall not be effective (see, e.g., Supreme Court Decision 2007Du103, Apr. 9, 2009). Furthermore, it shall be individually and specifically determined depending on whether there is inconsistency and promotion between the two, by comparing the legislative intent of the statutes and municipal ordinances, the purpose, contents, and effects of the regulations, etc. (see Supreme Court Decision 2002Da16, Apr. 23, 2004).

C. Article 54(1) of the Tourism Promotion Act provides that “The head of a Si/Gun/Gu having jurisdiction over a tourist destination, etc. shall prepare a creation plan and obtain approval from the competent Mayor/Do Governor. The same shall also apply to revisions (excluding amendments to minor matters prescribed by Presidential Decree).” Meanwhile, Article 171 of the Special Act providing special cases concerning the Tourism Promotion Act provides that “The authority of the Minister of Culture, Sports and Tourism may be vested in the authority of the Minister of Culture, Sports and Tourism, or some of the matters to be prescribed by Presidential Decree or Ordinance of the Ministry of Culture, Sports and Tourism may be prescribed by Provincial Ordinance.”

As can be seen, when modifying a creation plan under Article 54(1) of the Tourism Promotion Act, “minor matters” that need not be approved by the Mayor/Do Governor shall be prescribed by Presidential Decree. Accordingly, since Article 47(1) of the Enforcement Decree of the same Act lists “minor matters” under Article 47(1) through (3) of the same Act, it shall not be allowed to be prescribed otherwise by Provincial Ordinance as prescribed by the Enforcement Decree of the Tourism Promotion Act. Nevertheless, Article 77-2(1)4 of the amended Ordinance provides that “minor matters” under Article 54(1) of the Enforcement Decree of the same Act concerning “minor matters” under Article 54(1) of the same Act shall be excluded from the scope of higher statutes.

D. As to this, the Defendant asserts that Article 229(9) of the Special Act provides that the proviso of Article 229(9) shall be prescribed by municipal ordinances with respect to minor matters concerning alteration of a development project, and Article 230(1) of the Special Act provides that approval of a development project shall be deemed approval if approval of a development project is granted pursuant to Article 229. Thus, the Defendant asserts that minor matters concerning alteration of a development

However, Article 230 of the Special Act provides that the approval of a development plan shall be deemed to be effective according to the approval of a development project, and accordingly, it does not purport to grant the defendant the authority to prescribe minor matters of a development plan under Article 54 (1) of the Tourism Promotion Act under the authority to enact municipal ordinances under the proviso to Article 229 (9) of the Special Act. Thus, the above argument is not acceptable.

Thus, Article 77-2 (1) 4 of the Amendment Ordinance of this case is against Article 54 (1) of the Tourism Promotion Act, Article 47 (1) of the Enforcement Decree of the same Act, and Article 22 of the Local Autonomy Act.

3. Therefore, since part of the amendment bill of this case is unlawful and the re-resolution of the amendment bill of this case is entirely invalidated, the plaintiff's claim of this case seeking the exclusion of the validity of the re-resolution of the amendment bill of this case is justified, and the costs of lawsuit are borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)