[1] Whether the municipal ordinance stipulating support for living expenses for certain self-support recipients violates the provisions of Article 14 of the Local Finance Act (negative)

[2] The lawful requirements of the Municipal Ordinance in a case where any statute exists for specific matters to be prescribed by the Municipal Ordinance

[3] The case holding that the municipal ordinance stipulating support for living expenses for certain self-support recipients does not conflict with the protection system of self-support recipients under the Life Protection Act

[4] Whether a local government has a separate living protection system that does not conflict with and conflict with the living protection law, and its financial resources are fully borne by the local government, but the budget decision right violates the provisions of Article 36 of the Living Protection Act which the local government grants to the head of the local government

[1] Where the local council has been residing in the jurisdiction of the pertinent local government for not less than two years and has a legal person who is unable to perform the duty of support, and the local council determines a person who has no ability to work due to old age or older, children, pregnant or nursing women, disability or mental or physical disability under 65 years old or over, or under 18 years old, as a person eligible for protection and decides to support living expenses within the scope of the pertinent local government's budget in accordance with the living cost level under the living protection law, it is clear that the subsidy for living expenses for the person eligible for protection determined pursuant to the pertinent Ordinance falls under the "protection and support for the poor in living" under Article 9 (2) 2 (c) of the Local Autonomy Act and falls under the affairs of the local government, and therefore, this constitutes a case where the local government can contribute, subsidize or disburse other public funds to individuals or organizations other than public institutions, and the local government has the provisions of Article 14 (1) 1 of the Local Finance Act.

[2] A local government may enact a municipal ordinance to the extent that it does not violate a statute. The municipal ordinance is not in violation of a state law, if the municipal ordinance is intended to regulate a specific matter regulated by municipal ordinance in accordance with a separate purpose even in cases where there exists a law of the country that regulates it, and there is no intention that the municipal ordinance shall govern it in accordance with the law and its application, and it does not completely impede the purpose and effect of the statute's application, or even if the two begins from the same purpose, the State's law does not necessarily intend to regulate the same matter uniformly across the country, but it is interpreted that each local government

[3] The case holding that the contents of the Ordinance of the Ministry of Health and Welfare do not conflict with the provisions of the Ordinance of the Ministry of Health and Welfare, on the ground that the purpose of the Ordinance is to contribute to the improvement of the social welfare of the Gu residents by providing the minimum standard of living for those who have no ability to maintain their livelihood or who have difficulty in living and by guaranteeing their self-support, and thereby contributing to the improvement of the social welfare of the Gu residents; however, the standard and method of selecting persons eligible for protection and the contents of protection are different from those of the Living Protection Act, and at the same time, the contents of the Ordinance of the Ministry of Health and Welfare are different from those of the Living Protection Act in that they provide living expenses separately from the Living Protection Act, and there is no concern over impeding the intended purpose and effect of the Living Protection Act because they provide living expenses for some of the self-support persons eligible for assistance under the Ordinance of the Ministry of Health and Welfare in accordance with the Act, even though the Act provides that each local government shall not provide living expenses for those who are eligible for self-support.

[4] The goods secured by the financial power of the local government are built by the sacrifice of the residents who are members of the local government. Thus, the local council, which is the agency of the local government that has the authority and duty to manage the affairs concerning the welfare of the residents, should operate the financial affairs in a sound manner. However, the enactment and enforcement of the municipal ordinance that protects the poor living within the financial capacity of the local government, which is different from the living protection law of the local government, after hearing the opinion of the head of the local government in advance, is consistent with the essence of the local government system, and it does not cause any trouble to the sound operation of the local government. Thus, the specific criteria for the selection of the self-support recipients eligible for living expenses (the scope and criteria for the selection of the persons eligible for living expenses) which are contrary to the living protection law, shall be prescribed by the rule, and if the local government grants the head of the local government the authority to determine the amount of living expenses to be paid to the person eligible for the assistance within the budget, it cannot be deemed that the implementation of the municipal ordinance concerned does not violate the municipal ordinance.

[1] Articles 9(2)2(c) and 15 of the Local Autonomy Act, Article 14(1) of the Local Finance Act, Article 11 of the Life Protection Act / [2] Article 15 of the Local Autonomy Act / [3] Article 11 of the Life Protection Act, Article 15 of the Local Autonomy Act / [4] Articles 35 and 118(1) of the Local Autonomy Act, Article 30(1) of the Local Finance Act, Article 36 of the Life Protection Act

The head of Dong-gu Gwangju Metropolitan City (Attorney Kim Dong-dong, Counsel for defendant-appellant)

Gwangju Metropolitan City Council (Attorney Lee Jae-won, Counsel for defendant-appellant)

March 28, 1997

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

1. The process of the instant lawsuit and the contents of the Ordinance

The facts acknowledged by Gap evidence 1 to Gap evidence 6 are as follows:

A. On November 7, 1996, the defendant resolved the Municipal Ordinance stating the purport of the claim (hereinafter referred to as the "Municipal Ordinance") and transferred it to the plaintiff on the 8th of the same month. The plaintiff requested reconsideration to the defendant on the 27th of the same month according to the Gwangju Metropolitan City Mayor's request for reconsideration pursuant to Article 159 (1) of the Local Autonomy Act, but the defendant, on December 13 of the same year, re-resolutiond the above request for reconsideration without correction as the original resolution.

B. The re-resolution of the Ordinance provides that a person who has been residing in the jurisdiction of the local government concerned for not less than two years and is legally unable to fulfill the duty of support, and who has no ability to work due to a de facto difficulty in living among self-supported persons under the age of 65 years or older, children, pregnant or nursing women, disabled, or mental or physical disorder (Article 3) who are protected under this Ordinance (Article 2 subparagraph 1) shall be provided with living expenses (Article 4 (2)) within the scope of the old budget according to the standard of living expenses under the Living Protection Act, and the head of the Gu shall be obliged to secure the cost of living support from the general account budget every year (Article 10).

2. Judgment on the plaintiff's assertion

A. As to the assertion of violation of the Local Finance Act

The plaintiff first argues that Article 14 (1) of the Local Finance Act provides that a local government shall not make a donation, grant a subsidy, or pay public funds to an individual except as provided in each subparagraph. The plaintiff asserts that the Ordinance of this case violates the provisions of Article 14 of the Local Finance Act since the provision of living expenses support to a self-support recipient who intends to provide a subsidy pursuant to the Ordinance of this case does not fall under any of the subparagraphs of the above Article.

Article 2 of the Local Finance Act, which was enacted for the purpose of promoting the sound operation and strict management of local government finance by prescribing the basic principles for finance and accounting of local governments, provides for the sound operation obligations of local government finance in Article 2, and Article 14 (1) 1 of the Local Finance Act provides for one of the cases where a local government is able to contribute, subsidize or disburse other public funds to an individual or an organization that is not a public institution.

However, the local government has a duty to endeavor to promote social security and social welfare of residents (Articles 34(2) and 117 of the Constitution), and the local government has a duty to endeavor to promote the convenience and welfare of residents (Article 8(1) of the Local Autonomy Act). The local government may enact a municipal ordinance concerning its affairs within the scope of the law (Article 15 of the Local Autonomy Act). Article 9(2)2(c) of the Local Autonomy Act provides that "protection and support of the poor in living" shall be an example of the local government's affairs as part of the local government's affairs. In full view of the above provisions of the legislation, it is clear that the subsidy for living expenses for the person in need of protection determined pursuant to Articles 3 and 5 through 8 of the Ordinance of this case constitutes "protection and support of the poor in living" under Article 9(2)2(c) of the Local Autonomy Act, and therefore, it is not clear that the subsidy for living expenses for the person in need of protection determined pursuant to the Ordinance of this case belongs to Article 14(1) of the Local Finance Act.

B. As to the assertion of violation of the Living Protection Act

In addition, the plaintiff argues that the living protection law provides for the criteria for the selection of a person eligible for protection, the contents of protection, and the method of raising funds necessary for the protection, and that the Ordinance of this case is in violation of the provisions of the living protection law, which is a superior law, since it expands the subject and method of protection as a municipal

However, local governments may enact ordinances concerning their affairs to the extent that they do not violate the laws and regulations, and when the ordinances of the State which regulates certain matters regulated by ordinances are intended to regulate them in accordance with the separate purpose even in cases where there are laws and regulations of the State which regulate them, and their application does not entirely undermine the purpose and effect of the provisions of the Acts and subordinate statutes, or even if the two starts from the same purpose, the State's laws and regulations are not necessarily the purpose of uniformly regulating the same contents across the country, but the purport of allowing each local government to regulate them in accordance with the actual situation of the region is interpreted to be the same.

However, the purpose of the Ordinance of this case is to contribute to the improvement of the social welfare of the Gu residents by guaranteeing the minimum standard of living and creating self-support by providing protection to those who have no ability to maintain their living or have difficulties in living. However, it is different from that of the Ordinance of this case in terms of the Living Protection Act in that the criteria and methods for selecting persons eligible for protection (Articles 3, 5, and 8 of the Ordinance) and the contents of protection (Article 4 (2) are different from those of the Living Protection Act, and at the same time, the contents are to support living expenses separate from the Living Protection Act. It seems that there is no concern that the Living Protection Act does not interfere with the purpose and effect of the Ordinance because the Ordinance of this case provides that persons eligible for self-support should not support their living expenses throughout the country, even though the Living Protection Act provides that persons eligible for self-support should not support their living expenses, the purpose of the Ordinance of this case is to ensure that each local government should uniformly provide the same protection throughout the country, and thus, it is not contradictory to the purport of the Ordinance of this case.

Furthermore, the Plaintiff asserts that Article 36 of the Life Protection Act provides that the State and local governments shall bear the expenses required for the protection of the person eligible for protection in installments at a certain ratio, while the Ordinance of this case provides that the entire amount of financial resources necessary for the protection of the person eligible for protection shall be subject to the contribution of the local government concerned, which violates the provisions of Article 36

Therefore, since goods secured by the financial power of the local government have been achieved through the sacrifice of the residents who are the members of the local government, they should manage the sound financial affairs by using them most efficiently. However, the local council, which is the institution of the local government, shall hear in advance the opinion of the head of the local government in order to establish and enforce ordinances that protect the poor in living within the financial capacity of the local government (Article 123 of the Local Autonomy Act) separate from the Living Protection Act within the financial capacity of the local government, is consistent with the essence of the local autonomy system, and it does not cause any trouble to the sound operation of the local government's financial affairs.

However, according to the Local Autonomy Act, the head of the local government shall prepare a budget bill and submit it to the local council (Article 118(1) of the Local Autonomy Act, Article 30(1) of the Local Finance Act), and the local council shall determine the appropriateness of the budget bill submitted by the head of the organization under the authority of deliberation and determination of the budget (Article 35 subparag. 2 of the Local Autonomy Act) or ex post facto review the appropriateness of the budget bill disbursed by the head of the organization under the authority of approval for settlement of accounts (Article 35 subparag. 3 of the Local Autonomy Act). According to the Ordinance of this case, the detailed criteria for selection (Scope and criteria for selection of persons eligible for protection) shall be prescribed by the Rules (Article 3(2) of the Ordinance), and the amount of living expenses to be paid to persons eligible for protection shall be prescribed within the scope of the old budget (Article 4(2) of the Ordinance Bill). Thus, the implementation of the Ordinance of this case does not seem to hinder the sound operation of the finance of the local government concerned.

3. Therefore, the plaintiff's claim of this case, which is asserted as null and void because it violates the law, is dismissed, and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)