合議制行政機關의 設置와 條例制定權 - 대법원 2014. 11. 13. 선고 2013추111 판결 -

Abstract

This paper deals with whether the establishment of Collegiate Administrative Agencies is belonging to the unique authority of the head of local government. In addition, it deals with whether it violates the law, if the local council establishes an administrative institution by enacting of ordinance. This paper examines whether delegation of laws and ordinances is necessary for the establishment of Collegiate Administrative Agencies. It compares past precedents as to whether it violates the law, if the local council proposes the establishment of the Collegiate Administrative Agencies with a ordinance. Finally, it gives opinions on the direction of autonomous legislative power in the era of decentralization today. The judicial precedent of the case in this paper ruled that the decision by the local council in the case of the establishment of the Collegiate Administrative Agencies violated the organization right of the head of the local government. However, it is hard to see the ordinance of the local council for the establishment of Collegiate Administrative Agencies as distorting the intention of the organizational organizer. The self-governing legislative power of local council of the case should be considered as the scope of right exercise of legitimate powers to check the executive power. The Ordinance simply lets the 2 members of the local council participate in the composition of the editorial committee, the administrative committee of the consensus system, at a rate that is enough to reflect the opinion of the local council. It also stipulates that the member of the committee shall be appointed or commissioned by the head of local government. Therefore, it should not be judged as illegal as same as the case of establishing another executive agencies other than the Collegiate Administrative Agencies. Unlike other executive agencies, Collegiate Administrative Agencies are necessary for democratic and prudent decision-making. In this case, it should not be seen always as a violation of the authority of the head of the local governments simply because the local council stipulates the recommending some members for Collegiate Administrative Agencies with ordinance. It should be noted that the issue concerned is that the organization to be constituted by the ordinance is the Collegiate Administrative Agencies. If we limits the power of checking of the local council against the heads of local governments in this case of establishing the Collegiate Administrative Agencies, it is not meaningful to establish a consensus-based agency that is oriented towards fair and democratic decision-making. The Supreme Court is the body that has the final interpretation authority on the distribution between the authorities of the local governor and the local council in the Local Autonomy Law. Therefore, a new interpretation is needed in order to let the local council properly carry out the checks against the executive power of the head of local government.