[1] Whether the head of a local government within his/her jurisdiction can conduct personnel exchanges under Article 30-2 (2) of the Local Public Officials Act in cases where the preparation of a plan for personnel exchanges and recommendations for personnel exchanges based thereon are not followed (negative)

[2] Requirements and criteria for determining a defective administrative disposition as a matter of course

[3] The case holding that a disposition on the exchange of personnel in a market within its jurisdiction, which was taken without the Governor's recommendation on the preparation of the personnel exchange plan and the subsequent recommendation on the exchange of personnel, shall be deemed null and void as a significant and objective defect in light of the legislative intent under Article 30-2 (2) of the Local Public

[1] Article 30-2 (2) of the Local Public Officials Act provides that where a Mayor/Do Governor deems it necessary to exchange personnel between local governments within the jurisdiction of the pertinent local government and the pertinent City/Do, the head of the local government within the jurisdiction of the pertinent City/Do may recommend the exchange of personnel according to the personnel exchange standards set by the personnel exchange council established in the pertinent City/Do. In this case, the head of the pertinent local government shall comply with such guidelines unless there is a justifiable reason. Thus, unless the preparation of the personnel exchange plan and the recommendation for the personnel exchange are prior to such recommendation, the person exchange under the above provision

[2] In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect must be objectively apparent and serious in violation of the important part of the law. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself.

[3] The case holding that in light of the legislative intent of Article 30-2 (2) of the Local Public Officials Act, dispositions on the exchange of personnel at the market within the jurisdiction where a recommendation of personnel exchange was not made at all by the Do Governor and subsequent recommendation of personnel exchange, the defects are deemed to be null and void as significant and objective in light of the legislative intent

[1] Article 30-2 (2) of the Local Autonomy Act / [2] Articles 1 [General Administrative Disposition] and 19 of the Administrative Litigation Act / [3] Article 30-2 (2) of the Local Autonomy Act

[2] Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995 (Gong1995Sang, 263), Supreme Court Decision 95Nu4414 delivered on February 9, 1996 (Gong1996Sang, 966), Supreme Court Decision 96Da5204 delivered on May 9, 197 (Gong1997Sang, 1729), Supreme Court Decision 95Da15735 delivered on May 28, 1997 (Gong1997Ha, 1965), Supreme Court en banc Decision 95Nu8639 delivered on June 19, 197 (Gong1997Ha, 1913), Supreme Court Decision 200Du203649 delivered on October 24, 2007 (Gong1997Ha, 1913), Supreme Court Decision 200Du362947 delivered on October 264, 20197).

Plaintiff

Over 000

Seoul High Court Decision 2003Nu15968 delivered on September 15, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the misapprehension of legal principles as to personnel exchanges under Article 30-2(2) of the Local Public Officials Act (hereinafter referred to as the “Act”).

Article 30-2 (2) of the Act provides that where a Mayor/Do Governor deems it necessary to exchange personnel between local governments within the jurisdiction of the relevant local government and the relevant City/Do, he/she shall prepare a personnel exchange plan in accordance with the personnel exchange standards set by the personnel exchange council established in the relevant City/Do and shall recommend the head of the local government within his/her jurisdiction to exchange personnel. In such cases, the head of the relevant local government shall comply with it unless there is a justifiable reason. Thus, unless the preparation of the personnel exchange plan and the recommendation for personnel exchange are prior to such recommendation, the said provision shall not be implemented

According to the reasoning of the judgment below, the court below determined that the defendant cannot conduct personnel exchanges under Article 30-2 (2) of the Act, as long as the consultation on personnel exchanges between the defendant and the head of the local government who sent the head of the Si/Gun within his jurisdiction, including the defendant, to the head of the local government for the promotion of personnel exchanges was conducted in accordance with the plan of personnel exchanges between the heads of the local governments, prior to the disposition of this case ordering the transfer of local public officials to the plaintiff who are local public officials of Ycheon-si as a local public official of Ycheon-si, the court below held that the defendant cannot conduct personnel exchanges under the above provision, unless there is recommendation on the preparation of the personnel exchanges and other related

Examining the relevant statutes and the legal principles as seen earlier in light of the records, the above determination by the court below is justified, and there is no error of law by misapprehending the legal principles as to personnel exchange under Article 30-2 (2) of the Act.

2. As to the misapprehension of legal principles as to the invalidity of an administrative act as a matter of course

In order for the administrative disposition to be called null and void as a matter of course, it is insufficient to say that there is an illegal cause. The defect is a serious violation of the important part of the law and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court Decisions 94Nu4615 delivered on July 11, 1995, 2001Du4566 delivered on December 10, 2002, etc.).

The legislative intent of Article 30-2(2) of the Act is to grant the Mayor/Do Governor the authority to recommend personnel exchanges to ensure balanced placement of human resources between local governments and the administrative development of local governments within his/her jurisdiction, and to guarantee the proper exercise of such authority, and to follow the personnel exchange proposal prepared in accordance with the personnel exchange standards set out by the personnel exchange council in order to guarantee the proper exercise of such authority. Therefore, such a series of procedures are essential and significant in conducting personnel exchanges under the above provision. Thus, the instant disposition taken without any recommendation on personnel exchanges made by the Governor of the Gyeonggi-do and the subsequent disposition taken in the absence of any recommendation on personnel exchanges shall be deemed to be null and void as it is objectively obvious that its defect is significant

The judgment of the court below to the above purport is correct, and there is no error in the misapprehension of legal principles as to the invalidation of an administrative act as a matter of course.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-dam (Presiding Justice)