2014Nu10021 Revocation of disposition of revocation of issuance by a representative of petitioners for residents' voting;

1.A

2.B

3.C

4.D

[Defendant-Appellant]

Do Governor of Gyeongnam-do

Attorney Park Young-chul, Counsel for the plaintiff-appellant

Changwon District Court Decision 2013Guhap2028 decided December 10, 2013

June 12, 2014

July 3, 2014

1. All appeals filed by the defendant against the plaintiffs are dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On July 18, 2013, the defendant filed a non-issuance of a certificate of representative of petitioners for residents' voting with the plaintiffs.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the addition of "the additional judgment of the court of second instance" to the new argument of the defendant in the court of first instance under Paragraph 2 below, and therefore, it is acceptable to accept this as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Matters to be determined additionally by the second instance;

A. The defendant's assertion

Even if the disposition of this case is unlawful, it is necessary to judge the circumstances under Article 28 (1) of the Administrative Litigation Act for the following reasons.

1) The purpose of the plaintiffs' request for the residents' voting of this case is to "the resumption of Jinju Medical Center", and to "the revocation of the disposition of closure of Jinwon Medical Center and the confirmation of invalidity of the Ordinance for Dissolution of the Ordinance for Dissolution", the purpose of the lawsuit is "the revocation of the disposition of closure of Jinwon Medical Center and the confirmation of invalidation of the disposition of closure of closure of business and the disposition of dissolution of the Seoul District Court (hereinafter referred to as "related lawsuit")". The private voting of this case

2) In the local election conducted on June 4, 2014, the residents’ intention is to repeat the following procedures: (a) even though the candidates were found to have failed all of the candidates as a pledge, making the instant residents’ voting on the same matter; (b) again, making the instant residents’ voting on the same issue.

3) On October 23, 2013, the Gyeongnam-do Council proposed a municipal ordinance that provides "the Resumption of the Jinjin Medical Center" to the effect that it is accepted for the purpose of a request for residents' voting on October 23, 2013, and is currently being examined. Therefore, it is against Article 13 (2) of the Residents' Voting Act to conduct a separate

4) Considering the fact that the cost per se required for the implementation of the instant resident’s voting is estimated to exceed 14 billion won, the closure of business and dissolution is completed, and the enormous cost is required to resume the medical equipment, materials, and other infrastructure that has already been dissatisfed, it is not significantly inappropriate for the instant disposition to take measures for public welfare.

B. Determination

1) Relevant legal principles

Since maintaining an illegal administrative disposition itself goes against public welfare, cancellation of the administrative disposition is not considerably appropriate for public welfare even though it is illegal. In determining whether it is considerably inappropriate for public welfare, the requirement should be limited under extremely strict requirements. In determining whether it is considerably inappropriate for public welfare, which is the requirement, the above law and the unfair administrative disposition should be revoked or modified, and whether it is applied by comparing and comparing the situation against public welfare which may arise therefrom (see, e.g., Supreme Court Decision 2008Du13828, May 28, 2009).

2) The part concerning the defendant's claim 2. A. 1)

According to Article 7 (2) 1 of the Residents' Voting Act, the residents' Voting is prohibited for matters under trial. According to the evidence Nos. 12 and 13 of the above Act, the residents' Voting is recognized as being pending at the present time by filing a related lawsuit against the defendant et al. However, since the object of the lawsuit is contrary to the relevant Acts and subordinate statutes, the object of the lawsuit is different from the object of the lawsuit in this case, and even if it is judged that the disposition of closure and dissolution of the municipal ordinance are illegal, the object of the lawsuit in this case is not in violation of the relevant Acts and subordinate statutes, and the object of the lawsuit in this case is not in violation of the relevant Acts and subordinate statutes, it cannot be deemed that it is consistent with the residents' will. Even if the defendant delivers the certificate to the plaintiff, he has the right not to conduct the residents' Voting in this case, and even if he issues the certificate to the plaintiff, the bill is adopted, and it is not illegal or invalid retroactively. In light of the above, the defendant's assertion is without merit.

3) The part concerning the defendant's claim 2. A. 2

According to the evidence Nos. 11-2 and 11-2, in the local election implemented on June 4, 2014, the Do governor candidate's Do governor candidate's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do governor's Do

4) The part concerning the defendant's claim 2. A. 3

According to Article 13 (2) of the Residents' Voting Act, when the head of a local government or a local council has made a decision to accept the purpose of a request for residents' vote, the residents' voting shall not be proposed. According to the evidence No. 14, the fact that the 11 member of the Gyeongnam-do Council proposed a municipal ordinance related to "the resumption of the Jinju Medical Center" and is currently examined may be recognized, but the above proposal and examination alone cannot be deemed that the branch council has made a decision to accept the purpose of a request for residents' voting, and the defendant's assertion is without merit.

5) The part concerning the defendant's claim 2. A. 4

Even if the cost necessary for the residents' voting is excessive, it is not necessary to consider the matters to be examined at the stage of determining whether to conduct the residents' voting or whether to issue a certificate by the representative of petitioners for the implementation of the residents' voting. In addition, in the case where the result of the residents' voting in this case becomes final and conclusive that the Jinju Medical Center re-enters, the defendant and the Do Council of Gyeonggi-do have a duty to take necessary administrative and financial measures as determined in accordance with Article 24 (5) of the Jeju Residents' Voting Act. Thus, even if the expenses for the resumption of the Jinju Medical Center are paid a large amount of expenses, the cancellation of the disposition in this case is deemed considerably inappropriate for the public welfare. Thus, there

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and all appeals filed by the defendant against the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

Article 5 (Presiding Judge)

Gazers

Park Jae-rein iron