지방자치법 제5조와 행정행위의 해석 ― 구역을 변경하거나 폐치ㆍ분합할 때의 사무와 재산의 승계 ―

The former Local Autonomy Act (amended as law No. 4004 on April 6, 1988), which was amended in its entirety, designated Gu, which is merely an affiliated organization of the city government, to be an independent, local government. Since this law came into effect on May 1, 1998, there was a substantial number of disputes concerning succession of property between special metropolitan city governments and autonomous Gus. These disputes continue in the form of claims for performance of the procedure for the registration for property right transfer, claims for unjust enrichment or torts based on property rights, and etc. In preparation for the implementation of the autonomous Gus system, the Secretary of the Interior ordered the guidelines for adjusting municipal property to the Seoul Special Metropolitan City Government, and etc. The Seoul Special Metropolitan City Government established plans for adjusting municipal property, and ordered the same to each Gu to execute the procedure for property transfer. The Seoul Special Metropolitan City Government and autonomous Gus drafted the transfer agreement for local property, stating that “the Mayor of Seoul and the head of the Gu transfer certain property in accordance with the rules under Article 5 of the Local Autonomy Act, sign the transfer agreement, and keep a copy each to evidence the same.” The Seoul Special Metropolitan City Government subsequently solicited and approved the registration for property right transfer to complete the transfer procedure. The Seoul High Court Decision 2015Nu36036 Dated July 1, 2016 ruled on the legal character of the guidelines drafted by the Secretary of the Interior, whether Article 5 Paragraph 1 and 2 of the Local Autonomy Act apply, the legal meaning of the transfer agreement drafted for transferring the control of the property, and “designated act” set forth under Article 5 Paragraph 2 of the Local Autonomy Act. This article studies and analyzes by category the case law on which Article 5 of the Local Autonomy Act was applied. It reached the conclusion that the case between the special metropolitan city government and the autonomous Gu, which are multi-level local governments, should be considered as “where it is impractical to separate the affairs and property of local governments based on area” under Article 5 Paragraph 2 of the Local Autonomy Act. Further, the above case involved the issue of whether the Mayor of Seoul performed the designated act under Article 5 Paragraph 2 of the Local Autonomy Act by the document called the transfer agreement of local property. This decision instructed that it is difficult to view that there was an individual and final designated act concerning certain land, given that the transfer agreement of local property, even if it includes the same land, is drafted in comprehensive terms and a part of the administrative procedure for performing the administration of the property transfer. The decision found that there is an individual and final designated act of the Mayor of Seoul after the act of solicitation and approval of the registration for property right transfer. In particular, the court interpreted whether there was a designated act concerning specific land by comprehensively considering the guidelines for adjusting municipal property by the Secretary of the Interior, circumstances around drafting of the transfer agreement of local property, procedure for the registration of property right transfer, and the actor of authority of designation; the above appears reasonable.