[2] The case reversing the judgment of the court below which held that the charges calculated for the subsequent period was unlawful on the ground that the head of a local government did not re-examine the discharge amount of pollutants after a specific

[2] The case reversing the court below's decision on November 30 of the same year, on the ground that even if the business operator, prior to the issuance of the improvement order, puts pollutants into a bomb tank on November 24, 1996, which was before the order of improvement, it cannot be deemed that the business operator actually discharged pollutants below the permissible emission level and actually completed improvement work, and therefore, the business operator reported the completion of improvement order to the head of the local government on November 30 of the same year and confirmed it by the head of the above local government. Thus, unless the re-check of pollutants was conducted prior to that, the business operator should calculate emission charges for the emission period until November 30 of the same year based on the initial emission amount of pollutants, and since the head of the above local government did not re-examine the emission amount of pollutants after November 24 of the same year, it cannot calculate emission charges based on the initial emission amount of pollutants.

1. According to the reasoning of the judgment below, the court below found that the defendant collected samples twice on November 14, 1996 and requested water quality inspection to Jeju-do Public Health and Environment Research Institute on the 19th day of the same month to verify that pollutants exceed the permissible emission levels under the Water Quality Conservation Act, and ordered the plaintiff to improve the preventive facilities on the 26th day of the same month. The plaintiff continued to operate wastewater in excess of the permissible emission levels without normally improving the preventive facilities on the 19th day of the same month, but thereafter, purchased 27 ts in active condition after the factory's suspension of operation, and put them into a breadth. After the 20th day of the same month, the court below found that the defendant did not take measures for improvement of the defendant's order on the 30th day of the same month, after the 1996th day of the same month, and found that the plaintiff did not take measures for improvement on the 20th day of the same year from the 20th day of the same year to the 126th day of the same year.

2. Comprehensively taking account of the provisions of Articles 16, 25, and 29 of the Enforcement Decree of the Water Quality Conservation Act (hereinafter “Enforcement Decree”), emission quantity in excess of the standard necessary for calculating emission charges shall, in principle, be calculated based on the emission quantity of pollutants on the date of collecting the discharged pollutants which are the cause of the improvement order, as the emission period from the date of commencing the emission of pollutants or the date of executing the improvement order: Provided, That in cases where the implementation of the order is completed and reported within the improvement order, or where the emission quantity of pollutants is different from the initial measurement as the result of re-inspection of pollutants, the emission quantity of pollutants differs from the initial measurement. Meanwhile, if the improvement order was completed before the improvement order, it is difficult for such business operator to report the completion of improvement after receiving the improvement order, and it is difficult for the Plaintiff to calculate emission charges within the same period of 10 years until the date of the initial inspection of pollutants. Thus, it is difficult for the Plaintiff to calculate emission charges within the same period of 14 years prior to the completion of improvement order.

Nevertheless, the court below held that the discharge dues calculated for the subsequent period was unlawful solely on the ground that the defendant did not re-examine the discharge amount of pollutants after November 24 of the same year. Thus, the court below erred by misapprehending the legal principles as to the calculation of discharge dues, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)