(a) The scope of the power to enact ordinances of local governments according to the comprehensive delegation of Acts;

(b) Whether the parent law of the Seoul Special Metropolitan City Ordinance on Collection of Occupancy Fees, etc. of Public Waters (amended by Ordinance No. 2369, Aug. 2, 198) that stipulates that occupancy fees of public waters shall be calculated based on the standard market price at a nearby similar land shall be violated in cases where the public waters

C. Whether the ordinances of Paragraph (a) above apply to the case where the land grade is set for the relevant public waters (affirmative)

A. Even if the Act comprehensively delegates matters concerning the rights and obligations of residents to an ordinance without specifically stipulating the scope thereof, it is different from administrative agencies’ orders, and as a local government’s autonomy is enacted by the resolution of the local council, which is the representative body of residents, local governments may enact by municipal ordinance matters concerning the rights and obligations of residents to the extent that local governments do not violate the statute.

B. If the Seoul Special Metropolitan City Ordinance on the Collection of Occupancy and Use Fees, etc. of Public Waters (amended by Ordinance No. 2369 of Aug. 2, 198) enacted for the purpose of prescribing necessary matters concerning the imposition and collection of occupation and use fees of public waters under Article 7 of the Public Waters Management Act and Article 12 of the Enforcement Decree of the same Act (amended by Ordinance No. 2369 of Aug. 2, 198) separately uses public waters in the form of water surface and otherwise occupies and uses land in the form of land, and in the latter case, if the latter provides that the calculation of occupation and use fees shall be based on the standard market price under the provisions of the Local Tax Act of neighboring similar land even if public waters are similar to the neighboring land, the purpose of calculating the occupation and use fees is to be interpreted as violating the above law or the Enforcement Decree

C. The above paragraph (a) which provides for the calculation of river occupation fees based on the standard market price of similar adjacent land shall not apply to the public waters concerned, but shall be interpreted to apply to the public waters concerned where the land grade is set for the public waters concerned, not to the case where the land grade is set.

(a)(b)Article 117(1) of the Constitution, Article 15(b) of the Local Autonomy Act. Article 7 of the Public Waters Management Act, Article 12 of the Enforcement Decree of the Public Waters Management Act, Article 12 of the Seoul Special Metropolitan City Ordinance on the Collection of Occupancy Fees, etc. in Public Waters (amended by Ordinance No. 23

Attorney Han Han-chul, Counsel for the defendant-appellant

The head of Yongsan-gu Seoul Metropolitan Government

Seoul High Court Decision 89Gu1546 delivered on June 27, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. Judgment on the ground of appeal No. 1 by the Plaintiff’s attorney

Article 7 of the Public Waters Management Act (hereinafter referred to as the "Act") and Article 12 of the Enforcement Decree of the same Act (hereinafter referred to as the "Decree") stipulate matters necessary for the collection of fees for occupation and use of public waters which are the revenue of local governments to be prescribed by Municipal Ordinance of the relevant local government. A comprehensive delegation is made to Municipal Ordinance without specifying the standards for calculation of fees for occupation and use, and Article 7 of the Act and Article 12 of the "Decree" are prescribed by the delegation of the above Act. The Seoul Special Metropolitan City Ordinance on Collection of Fees for Occupancy and Use of Public Waters (amended by Ordinance No. 2028 of Oct. 4, 1985) established for the purpose of establishing necessary matters concerning the imposition of fees for occupation and use of public waters under Article 7 of the Act and Article 12 of the "Decree" (hereinafter referred to as the "Act") provides that the standards for calculation of fees for occupation and use of public waters shall be determined by the Ordinance of the relevant local government. The same applies to cases of occupation and use of public waters in the form of land, not in the form of waters.

However, Article 117(1) of the Constitution provides that "Local governments shall deal with affairs concerning the welfare of residents, manage property, and establish regulations concerning autonomy within the scope of statutes," and Article 15 of the Local Autonomy Act provides that "local governments may enact municipal ordinances concerning their affairs within the scope of statutes: Provided, That in cases where a law comprehensively delegates matters concerning restrictions on the rights and obligations of residents, or imposition of duties on residents, it shall be delegated by law." Thus, even if a law comprehensively delegates matters concerning the rights and obligations of residents without specifying the scope of the rights and obligations of residents, it is different from administrative orders issued by administrative agencies, so municipal ordinances may also be enacted by municipal ordinances to the extent that the local council, which is the representative institution of residents, is the autonomy of local governments established by resolution of local councils.

Therefore, the court below is justified in holding that the above revised municipal ordinance does not violate the "Act" or "Ordinance" as it is reasonable, and it does not contain any error of law by erroneous interpretation of the law as to this point, such as the theory of lawsuit, in the judgment below, since it is not justified in holding that the above revised municipal ordinance does not constitute a violation of the "Act" or "Ordinance", since it is interpreted that the purpose of use, function, regional conditions, location, environment, and current use are similar to neighboring land under the provisions of the Local Tax Act.

2. Determination on the above grounds of appeal Nos. 2 and 3

In light of the purport of the amendment of the above Ordinance as seen earlier, the above amendment Municipal Ordinance stipulating that the river occupation fees shall be calculated on the basis of the standard market price of nearby similar land shall be applied to the public waters concerned, as alleged by the plaintiff, not only to the cases where the land grade that can calculate the standard market price of the public waters is not set, but also to the cases where the land grade is set for the public waters concerned. Thus, the court below determined that the public waters of this case occupied and used by the plaintiff (the land category of the public waters of this case is maintained and removed) are similar to the land of Yongsan-gu Seoul Metropolitan Government, which is used as the site of the same building constructed on the ground, and thus, the occupation fees of the public waters of this case should be calculated on the basis of the standard market price under the Local Tax Act of the above site.

In light of relevant evidence and records and the provisions of relevant Acts and subordinate statutes, the above recognition judgment of the court below is just and acceptable, and the judgment of the court below is not erroneous in the misapprehension of legal principles as to the above municipal ordinance or neighboring similar land like the theory of lawsuit. Thus, all of the arguments cannot be accepted.

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)