Open Decision Ledger · Constitutional, administrative & state liability
Setting detailed subsidy criteria by administrative legislation under a bus ordinance
Supreme Court, Nov. 25, 2021, 2020Du43449 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 성과이윤제한처분취소
Official text on the National Law Information Center
Question
Where a city ordinance on the semi-public bus system left the standards and scope of financial support payments open, did the mayor have broad discretion to set detailed criteria by administrative legislation, and was the measure restricting a bus operator's performance profit on the basis of such a guideline unlawful for want of a delegated basis in the ordinance?
Holding
The mayor has broad discretion in fixing the standards and scope of subsidy payments, because the ordinance provides only general provisions and a financial support payment is an advantageous administrative act. The mayor may set the detailed criteria for granting subsidies by way of administrative legislation as standards for exercising that discretion, and such standards should be respected as far as possible unless they conflict with superior law or the ordinance, or lack objective reasonableness. The provision restricting performance profit in the operating guideline was made within the authority granted by the ordinance's general authorisation provision, so the court below erred in holding the measure unlawful solely because it rested on a provision of no legal force.
Points at issue, verbatim
시장이 위 재량을 행사하기 위한 준칙으로 행정입법 형식으로 보조금 교부에 관한 세부기준을 정할 수 있는지 여부(적극) 및 그와 같은 기준은 가급적 존중되어야 하는지 여부(원칙적 적극)
Unofficial English translation
Whether the mayor may establish detailed criteria on the granting of subsidies in the form of administrative legislation, as standards for the exercise of the said discretion (affirmative), and whether such criteria should be respected as far as possible (in principle, affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Form of the test
Elements stated Stated in the decision
피고는 그 재량을 행사하기 위한 준칙으로 조례 시행규칙이나 내부 지침 등 행정입법 형식으로 보조금 교부에 관한 세부기준을 정할 수 있고
Unofficial English translation
the defendant may establish detailed criteria on the granting of subsidies in the form of administrative legislation, such as Enforcement Rules of the municipal ordinance or internal guidelines, as standards for the exercise of the discretion, and
Factors
- 지방보조금의 지급기준과 범위 등을 정하는 것에 관하여 교부관청인 시장에게 폭넓은 재량이 부여되어 있는지 여부(적극)
- 시장이 위 재량을 행사하기 위한 준칙으로 행정입법 형식으로 보조금 교부에 관한 세부기준을 정할 수 있는지 여부(적극)
- 그와 같은 기준은 가급적 존중되어야 하는지 여부(원칙적 적극)
Unofficial English translation
• Whether, with respect to determining the criteria and scope of payment, etc. of local subsidies, a broad discretion is vested in the mayor as the grant authority (affirmative)
• Whether the mayor may establish detailed criteria on the granting of subsidies in the form of administrative legislation, as standards for the exercise of the said discretion (affirmative)
• Whether such criteria should be respected as far as possible (in principle, affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 8. 30. 선고 2017두56193 판결(공2018하, 1932)
Unofficial English translation
Supreme Court Decision 2017Du56193 decided August 30, 2018 (Gong 2018 Ha, 1932)
Decisions referred to
[1] 대법원 2018. 8. 30. 선고 2017두56193 판결(공2018하, 1932), 대법원 2019. 10. 31. 선고 2017두62600 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What range of performance profit restriction falls within the mayor's discretion once the guideline provision is held to be a valid standard for exercising it?
The remand judgment of the Daegu High Court, once it decides whether the one-year restriction of the plaintiff's performance profit was lawful, will show how far the discretion reaches. Any amendment to Article 50(2)(iii) of the Passenger Transport Service Business Act or to the Daegu Metropolitan City ordinance would call for a fresh reading of this entry.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary frames the holding as setting out requirements for exercising discretion, while the independent applies it to whether this restriction is valid; the same holding is read at different levels of abstraction.
위 처분이 조례의 위임범위를 벗어나 법규로서의 효력이 없는 위 운영지침의 조항에 근거한 것이어서 위법하다고 본 원심판단에 법리오해의 잘못이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 19 June 2020 (2019Nu4302), held that Article 34(2)(vii) of the Daegu Metropolitan City operating guideline for the semi-public bus system exceeded the scope delegated by the ordinance and had no force as a legal norm, so the measure resting on it was unlawful and had to be cancelled. It reasoned that Article 22 of the ordinance exhaustively listed only two grounds, improper receipt of financial support and omission of transport revenue, and that Article 27 allowed the guidelines to detail matters only within the range of those provisions, not to create new grounds of sanction.
Supreme Court standard: The Supreme Court held that performance profit, unlike transport costs or basic profit, is a performance bonus of a stronger benefit character aimed at preventing mismanagement and falling service quality, so the requirement of specificity and clarity is relaxed. Article 22 does not restrictively list the grounds for restricting performance profit, and the guideline provision is a standard for exercising the mayor's discretion, made within the general authorisation of Article 27 and not contrary to the ordinance or objectively unreasonable. It found no error in the court below's finding that the notification was an administrative measure open to cancellation, but reversed the judgment for misreading the legal nature of Articles 22 and 27 of the ordinance and of the provision at issue, and remanded the case to the Daegu High Court.
Distinguishing conditions
- A guideline criterion that conflicts with superior law or with the ordinance, or that is objectively lacking in reasonableness, since the Court respects such standards only in the absence of those circumstances.
- A restriction on transport costs or basic profit within the standard operating cost, where the Court's relaxation of the requirement of specificity was reasoned from the nature of performance profit.
- An ordinance that itself sets concrete provisions on the grounds for restricting performance profit, so that no room for a discretionary standard remains to be filled.
Record verification notes
Identify which version of the Daegu Metropolitan City ordinance governed the measure, since it was amended by Ordinance No. 5644 of 30 September 2021, and read Article 22 and the general authorisation in Article 27 against the guideline provision relied on. Then separate the question of whether the notification was an administrative measure, which the Court left undisturbed, from whether the one-year restriction of KRW 164,345,713 in performance profit was itself within the range of reasonable discretion, which the Court did not decide.
From the official text
Points at issue
[1] 지방보조금의 지급기준과 범위 등을 정하는 것에 관하여 교부관청인 시장에게 폭넓은 재량이 부여되어 있는지 여부(적극) / 시장이 위 재량을 행사하기 위한 준칙으로 행정입법 형식으로 보조금 교부에 관한 세부기준을 정할 수 있는지 여부(적극) 및 그와 같은 기준은 가급적 존중되어야 하는지 여부(원칙적 적극) [2] 시내버스 준공영제 시행에 따라 대구광역시로부터 운송수입금 부족액에 대하여 재정지원금을 지급받던 시내버스 운송사업자인 갑 주식회사의 대표이사 등이 업무상횡령죄 등으로 형사판결을 선고받았다는 이유로, 대구광역시 준공영제운영위원회가 ‘대구광역시 시내버스 준공영제 운영지침’ 제34조 제2항 제7호를 근거로 갑 회사에 대하여 성과이윤 1년분의 제한을 의결함에 따라 대구광역시장이 대구광역시 버스운송사업조합 산하 운송수입금 공동관리 업체협의회에 이를 통보한 사안에서, 위 처분이 조례의 위임범위를 벗어나 법규로서의 효력이 없는 위 운영지침의 조항에 근거한 것이어서 위법하다고 본 원심판단에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] Whether, with respect to determining the criteria and scope of payment, etc. of local subsidies, a broad discretion is vested in the mayor as the grant authority (affirmative) / Whether the mayor may establish detailed criteria on the granting of subsidies in the form of administrative legislation, as standards for the exercise of the said discretion (affirmative), and whether such criteria should be respected as far as possible (in principle, affirmative) [2] A case in which it was held that the judgment of the court below contained a misapprehension of legal principles in holding that the disposition in question was unlawful on the ground that it was based on a provision of the said Operation Guidelines which, having exceeded the scope of the delegation of the municipal ordinance, had no effect as a statute, where, after the representative director and others of A Co., Ltd., a city bus transportation business operator that had been receiving financial support funds from Daegu Metropolitan City for the shortfall in transportation revenue under the semi-public operation system for city buses, were sentenced to a criminal judgment on charges including embezzlement in the course of one's business affairs, the Semi-Public Operation Committee of Daegu Metropolitan City resolved to impose a limitation of one year's performance profit on A Company on the basis of Article 34 (2) subparagraph 7 of the "Daegu Metropolitan City Operation Guidelines for the Semi-Public Operation System for City Buses," whereupon the Mayor of Daegu Metropolitan City notified the Business Council for Joint Management of Transportation Revenue under the Daegu Metropolitan City Bus Transportation Business Association thereof
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대구고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daegu High Court.
Provisions referred to
[1] 여객자동차 운수사업법 제50조 제2항 제3호, 지방자치법 제23조, 행정소송법 제27조 [2] 여객자동차 운수사업법 제50조 제2항 제3호, 지방자치법 제23조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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