2012 Action for nullification of Re-Resolution of Ordinance No. 91

The head of a local government shall serve as the head of the local government;

Attorney omitted

The Local Council shall have jurisdiction over the establishment of the Local Council.

Representative Kim Jong-chul

Attorney omitted

November 29, 2012

December 26, 2012

A re-resolution on the draft of the basic ordinance of the Si Gyeong-si, which was made by the Defendant on April 18, 2012, shall not be effective.

Costs of lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Review of the Re-Resolution No. 1, No. 2, No. 3-1, No. 2, and No. 4 of the Ordinance of this case reveals the following facts.

A. On February 27, 2012, the Defendant passed a resolution on the draft of the Framework Ordinance Ordinance of the Gyeong-si Council (hereinafter referred to as the “Ordinance”) and transferred it to the Plaintiff.

B. The Ordinance of this case provides that a local council member may have assistant staff to support legislative activities (Article 21). Within 30 days after the Mayor appoints the head of a local government-invested public corporation and local government public corporation under Article 146 of the Local Autonomy Act (hereinafter referred to as the "head of an affiliated organization"), the standing committee shall prepare and resolve a verification report on its management ability, etc. to the head of an affiliated organization under his/her jurisdiction and submit it to the Speaker, the Speaker shall report it to the plenary session without delay and send it to the City Mayor (Article 57).

C. The Plaintiff requested reconsideration on the ground that the above contents of the Ordinance were in violation of the statutes. However, on April 18, 2012, the Defendant re-decided and finalized the Ordinance as the original bill.

2. Whether the Ordinance of this case is unlawful

A. Determination on Article 21 of the Ordinance of this case

Article 33 of the Local Autonomy Act provides that activities for parliamentary activities, travel expenses and monthly allowances shall be paid to local council members, and Article 34 does not provide that the local council members shall pay remuneration to assistant members only when they die or suffer bodily injury while on duty during the session, and there is no provision that the Local Autonomy Act provides that the status, status, and treatment of local council members shall be changed seriously by the law of the National Assembly (see, e.g., Supreme Court Decision 201Do49, May 24, 2012).

In addition, Article 90 of the Local Autonomy Act provides that the secretariat, the secretariat, and the division of affairs shall be established in accordance with the Municipal Ordinance in order to handle the affairs of the local council. This is to assist the local council in the operation of the intentions necessary for the performance of its functions as a deliberative organ and to handle various administrative affairs incidental thereto. Since the local council does not have to assist the activities of the council members, each of the above provisions does not serve as a basis for employing assistants to the local council members. In addition, Article 59 of the Local Autonomy Act provides that each of the above provisions shall have expert members of the local council. This is to support the autonomous legislative activities of the chairperson and the members, but it is not to support the autonomous legislative activities of the local council, so the above provision does not serve as a basis for employing assistants

Therefore, Article 21 of the Ordinance of this case is against the law. The plaintiff's assertion on this part is with merit.

B. Determination on Article 57 of the Ordinance of this case

Under the Local Autonomy Act, the executive organs of local governments and local councils of local governments shall exercise their own authority separately, but it is allowed to participate in the exercise of the other party's authority within the scope of mutual checks.

Therefore, the local council is not allowed to independently exercise the right of personnel of the executive organ or to actively intervene in it in advance, and it is not allowed to actively intervene in it in principle, but it is allowed to passive and ex post facto intervention within the scope of checks as to the right of personnel of the executive organ (Supreme Court Decisions 93Do175 delivered on April 26, 1994; 9 Supreme Court Decisions 2009Do9175 delivered on September 209.

24. See, e.g., Supreme Court Decision 2009Hu53, supra)

In light of the above facts in light of the above legal principles, Article 57 of the Ordinance of this case provides that the plaintiff shall appoint the head of an affiliated agency and submit a verification report on the management ability, etc. of the head of the affiliated agency to the plaintiff at the competent standing committee after the occurrence of the situation, and the plaintiff shall not be bound by the contents of the verification report or take any measures accordingly. Thus, it is merely passive and ex post facto intervention within the scope of the verification report, and thus, it cannot be said that the right of personnel of the executive agency is infringed. The plaintiff's assertion on

3. Conclusion

If so, as seen earlier, as long as part of the Ordinance of this case violates the law and is illegal, 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 is justified, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-deok

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim Gin-young