[1] The purpose of Article 34(6) of the former Enforcement Decree of the Local Autonomy Act concerning procedures for collecting opinions from local residents, and whether the Deliberation Committee on Maintenance and Improvement of Local Governments is unlawful in violation of the above provision if it is somewhat insufficient, although it has gone through the procedures for collecting opinions from local residents (negative with qualification)

[2] In a case where a local government’s maintenance deliberation committee voluntarily determines a “limit on expenses for parliamentary activities, etc.,” but there are parts that do not fully meet the residents’ sentiments or results of a public opinion poll in the process of decision, whether such decision is unlawful (negative with qualification)

[1] Article 33 of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009); Article 34 (6) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008) / [2] Article 33 (1) and (2) of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009); Article 33 (1) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008)

[1] [2] Supreme Court Decision 2011Du7489 decided Feb. 27, 2014 (Gong2014Sang, 714)

Plaintiff 1 and 3 others (Law Firm Jeong, Attorneys Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Hong-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu24229 decided March 30, 201

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

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. The legality of the procedure for gathering opinions from local residents

A. Article 33 of the former Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009) shall be paid to members of local councils for parliamentary activities, travel expenses, and monthly allowances (hereinafter “expenses for parliamentary activities, etc.”). The standards for payment shall be prescribed by ordinances of local governments within the scope determined by the Deliberation Committee on the Maintenance of Local Governments (hereinafter “Deliberation Committee”), as prescribed by Presidential Decree (Article 2). Under such delegation, matters necessary for the formation, operation, etc. of the Deliberation Committee shall be prescribed by Presidential Decree (Article 34(6) of the former Enforcement Decree of the Local Autonomy Act (amended by Presidential Decree No. 21075 of Oct. 8, 2008; hereinafter “Enforcement Decree”). Article 34(6) of the former Enforcement Decree of the Local Autonomy Act provides that when the Deliberation Committee intends to determine the upper limit of expenses for parliamentary activities, etc., the procedures for collecting opinions from local residents, such as public hearings, inspection of residents’ opinions, etc.

In light of the purport of the above provision, including the form, content, and system of the provision on the procedures for collecting opinions of local residents, the above provision only provides that the Council shall undergo the procedures for collecting opinions of local residents when it determines the upper limit of the expenses for parliamentary activities, etc., and does not provide for the specific form and content of the procedures, and does not impose an obligation on the Council to reflect the results of collecting opinions of local residents in the decision on the expenses for parliamentary activities, etc., the above provision’s purpose is to impose procedural obligations to undergo the process of collecting public opinions of local residents in order to promote the adequacy and transparency of the upper limit of the expenses for parliamentary activities, etc., and it cannot be deemed that the Council requires that it actually ascertains the opinions of local residents and reflects the results thereof. Therefore, if the Council has broad discretion on how to form the forms and contents of the procedures for collecting opinions of local residents, and the Council has undergone the procedures for collecting opinions of local residents within its discretion, it cannot be deemed unlawful without having been going through the relevant statutes to the same extent as that it did not go through such procedures.

나. 원심이 인용한 제1심판결의 이유 및 원심과 제1심이 적법하게 채택하여 조사한 증거 등에 의하여 알 수 있는 다음과 같은 사정 즉, ① 이 사건 강북구 심의회는 지역주민의 의견을 수렴하는 방법으로 전화설문조사(ARS) 방식을 선택하고, 전문 여론조사기관에 의뢰하여 지역주민 1,000명을 대상으로 적정한 의정활동비 등의 범위 등에 관하여 의견을 묻는 조사를 거쳐 그 결과를 보고받아 의정활동비 등에 관한 심의 자료로 활용한 점, ② 이 사건 강북구 심의회는 설문안의 내용을 ‘㉠ 연령, ㉡ 성별, ㉢ 의정활동비 등 현실화가 지방의회 역량 강화에 기여할지 여부, ㉣ 의정활동비 등의 적정한 범위’로 하기로 결정하였고, 그 과정에서 위원들이 의정활동비 등의 적정한 범위에 관한 설문안에 대하여 수정의견을 제시하는 등의 심의를 거친 점, ③ 지방자치법을 2005. 8. 4. 법률 제7670호로 개정(2006. 1. 1.부터 시행)하여 종전에 회기에 따라 지급하던 ‘회기수당’을 직무활동에 대하여 지급하는 ‘월정수당’으로 전환하였는바, 이는 지방의회 의원이 전문성을 가지고 의정활동에 전념할 수 있는 기틀을 마련하고자 한 데 그 취지가 있는 점에서 보면, 위와 같이 결정한 설문안에 수긍할 수 있는 측면이 충분히 있는 점, ④ 다수 상대방에 대한 전화설문조사(ARS) 방식의 특성상 응답비율을 높이기 위하여 핵심적인 사항에 관한 간략한 설문에 의한 조사방식이 합리적이라고 볼 수 있는 점 등을 앞서 본 법리에 비추어 보면, 이 사건 강북구 심의회가 실시한 지역주민의 의견수렴 절차에 일부 미흡한 점이 있다고 하더라도, 그 절차를 거치지 아니한 것과 동일하게 볼 수 있을 정도로 관계 법령의 취지를 명백히 저버린 것으로 평가하기는 어렵고, 따라서 이를 위법하다고 할 것은 아니다.

C. Nevertheless, the lower court determined that the procedure for gathering opinions from local residents of the Gangnam-gu Council of the instant case was unlawful on the grounds as stated in its reasoning, in violation of Article 34(6) of the Enforcement Decree. This is erroneous by misapprehending the legal doctrine on the legality of the procedure for gathering opinions

2. Regarding the legality of the upper limit of parliamentary activity expenses, etc.

A. As seen earlier, Article 33(1) and (2) of the Local Autonomy Act provides that the criteria for the payment of parliamentary activities, etc. to be paid to members of the local council shall be determined by the Municipal Ordinance of the local government within the scope determined by the deliberation council of the relevant local government, as prescribed by Presidential Decree. As such, Article 33(1) of the Enforcement Decree provides that the criteria for the payment of parliamentary activities, etc. shall be determined by Municipal Ordinance within the scope of the amount determined by the deliberation council in consideration of the financial capacity, etc. of the relevant local government, and Article 33(1) of the Enforcement Decree provides that parliamentary activities and travel expenses shall be determined within the scope of the amount prescribed in the attached Table of the Enforcement Decree (Article 1 and 2);

According to the laws and regulations, expenses for parliamentary activities are paid to members of local councils to ensure objectivity and appropriateness of the criteria for the payment of parliamentary activities as prescribed by municipal ordinances, and the criteria and procedures to be followed by the Council when it determines the upper limit are presented. Unlike the expenses for parliamentary activities or travel expenses, it is only listed as examples to consider certain matters, such as the income level of local residents, without setting specific and substantial standards on the amount or calculation method with respect to monthly allowances.

Therefore, where the Council voluntarily determines the “limit on parliamentary activities expenses, etc.,” even if there are parts that are not in compliance with the result of the residents’ sentiments or public opinion poll during the process of determining the “limit on parliamentary activities expenses, etc.,” it is merely a formal process to the extent that it is impossible to achieve the legislative intent that reflects the resolution of the Council, and so long as it does not go through the process, it cannot be deemed unlawful (see Supreme Court Decision 2010Du13524, Jul. 26, 2012).

B. According to the reasoning of the judgment of the court of first instance and evidence duly adopted and examined by the court of first instance as cited by the court below, ① the legislative purport of confirming data, etc. on the finance, population, and budget of each autonomous Gu in the course of determining the “limit on parliamentary activities expenses, etc.” through a four-time meeting, and converting the session allowances into monthly allowances, balance with other public officials, the result of gathering residents’ opinions, provisional criteria for determination of parliamentary activities of other autonomous Gu in Seoul Special Metropolitan City, and the level of financial independence, etc., various opinions were presented from 48 million to 60 million won as a result of voting by each of the deliberation committee members, and ② Accordingly, the Gangnam-gu Council of this case determined the upper limit on parliamentary activities expenses, etc., which are close to the average amount presented as above, and finally determined the upper limit on parliamentary activities expenses, such as parliamentary activities expenses, etc., within the scope of such amount, and finally determined the upper limit of remuneration of local public officials or the amount of increase in remuneration of the autonomous Gu.

Examining these facts in light of the legal principles as seen earlier, it is difficult to deem that the Decision on “Limit on Expenses for Parliamentary Activities, etc.” of the Gangnam-gu Council was unlawful on the ground that it merely goes through formal procedures to the extent that it is impossible to achieve the legislative intent that reflects the resolution of the Council under the statutes.

C. Nevertheless, the lower court determined that the determination of the “limit on parliamentary activities expenses, etc.” of the Gangnam-gu Council in this case was unlawful in violation of Article 33(1) of the Enforcement Decree on the grounds stated in its reasoning. This is erroneous by misapprehending the legal doctrine on the legality of the determination of “limit on parliamentary activities expenses, etc.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Poe-young (Presiding Justice)