[2] In a case where a building on which an illegal water supply facility was installed has been purchased without knowing the fact thereof and simply received water supply, whether the user of the water supply facility committed a fraud or other unlawful act in order to escape charges, or exempted the collection of the facility contributions by executing the water supply work without the approval of the Mayor (negative)

[2] Article 34 (2) of the Seoul Special Metropolitan City Ordinance on Water Supply provides that "any person who uses water supply illegally, executes construction without the approval of the market, or commits any fraudulent or other unlawful act with the intention of avoiding charges or fees may be punished by a fine for negligence not exceeding 500,000 won," and Article 34 (3) of the same Ordinance provides that "any person who is exempted from the collection of charges for facilities by executing the water supply construction without the approval of the market may be punished by a fine for negligence not exceeding five times the amount exempted from the collection," while the proviso of Article 5 provides that "no person who acquires the building or land with the water supply system shall succeed to the additional collection charges and liability for all kinds of fines for negligence under Article 34". Thus, if the water supply system is simply purchased with no knowledge of such circumstances, such as participating in or assisting in illegal acts such as the installation or maintenance of illegal water supply system, it cannot be seen as a case where the user of the water supply facility with the intention of avoiding charges or other unlawful acts, or without the approval of the market.

In around 192, the court below acknowledged the fact that the non-party newly constructed the building of the first floor underground and the fifth floor above ground (hereinafter referred to as the "the building of this case") of the five-story neighborhood living facilities in Seongbuk-gu Seoul (No. 1 omitted) and (No. 2 omitted), and the building of the five-story neighborhood living facilities in the sloping roof, and the fifth floor above (hereinafter referred to as the "the building of this case"). The non-party did not obtain approval prior to the passage of the water meter at the time, and installed another 13-meter water pipe and supplied tap water by unlawful means by the water pipe, and the plaintiff purchased the building of this case from the non-party on February 8, 1995, and used the water supply facility installed by the non-party on April 15 of the same year.

Furthermore, the lower court dismissed the Plaintiff’s claim for revocation of the Plaintiff’s usage fee and water supply charge, charges for negligence, and fines for negligence, under Article 34(1), (2), and (3) of the Seoul Special Metropolitan City Water Supply Ordinance, as long as the Plaintiff used tap water through an illegal water supply pipe, even though it was unaware of the fact that the Plaintiff was established as an illegal water supply pipe in the instant building, as a matter of principle, because it is a sanction imposed on the objective facts of violation of administrative laws and regulations in order to maintain administrative order. However, the part of the water supply charge and fines for negligence in the instant disposition was premised on the Plaintiff’s commencement of the use of the instant building on April 15, 1995, even if the Plaintiff used it from February 8, 195, and thus, was illegal to the extent exceeding the reasonable amount due to the actual number of days used by the Plaintiff.

2. Determination of the grounds of appeal and grounds of supplementary appeal as to the fine for negligence on water supply

Article 34 (1) of the Seoul Special Metropolitan City Water Supply Ordinance (amended by Act No. 337 of Oct. 5, 1996) provides that "a person who is exempted from the collection of charges or other fees by fraud or other improper means may be punished by a fine for negligence not exceeding five times the amount exempted from the collection, in addition to collecting the exempted amount." Since administrative order punishment, such as a fine for negligence, is imposed on the objective fact of violation of the duty to maintain administrative order, it is not a real offender, but a person who is provided by the law as a person in charge of the violation of the duty to maintain administrative order, and in principle, it is not unreasonable that the violator did not know the duty, but it is not unreasonable that the violator did not know the duty. Therefore, if there is a justifiable reason that it is unreasonable to expect the party to perform the duty, it is not possible to impose the fine for negligence.

However, according to the records, the plaintiff was informed of the non-party at the time of purchase of the building of this case where the non-party illegally supplied water supply system was installed by the non-party and it was found that the non-party did not know of the circumstances at all at the time of discovery that the location or connection structure was laid open by the non-party, and even at the time of discovery, the plaintiff was informed of the non-party about the first payment of the charge for the use of the water used in the building of this case as of July 16, 1995. Thus, the plaintiff was aware of the fact that the non-party was notified of the charge for the first time. As such, until the plaintiff received the payment notice from the defendant or knew that the water used was considerably measured compared to the size of the building, it is unreasonable to receive the water supply using the water supply system in its situation, and therefore there is a justifiable reason not to be a violation of the duty.

Nevertheless, the court below did not consider more detail as to when the plaintiff was aware that the water use fee would be imposed normally, and determined that the imposition of a fine for negligence for water use fee according to the number of days starting from the date when the plaintiff moved into the building of this case on the sole ground of objective facts that the plaintiff used tap water through the illegal water supply pipe installed in the building of this case was lawful. Thus, the court below erred by misapprehending the legal principles as to legitimate grounds as a reason for the exemption from the fine for negligence and failing to exhaust all necessary deliberations, which affected the conclusion

Therefore, we accept the argument in the grounds of appeal pointing this out.

3. Determination of the grounds of appeal and grounds of supplementary appeal on the part of fines for negligence and facility contributions.

Article 34(2) of the above Water Supply Ordinance provides that a fine for negligence not exceeding 500,000 won may be imposed on a person who uses the water supply without the approval of the market, a person who executes a construction work without the approval of the market, or a person who conducts a fraudulent or other unlawful act without the approval of the market, and Article 34(3) of the above Ordinance provides that a fine for negligence not exceeding five times the amount exempted from the collection of the facility contributions may be imposed on the person who is exempted from the collection of the facility contributions by executing the construction work without the approval of the market. Meanwhile, the proviso of Article 5 provides that the acquisitor of the building or the land where the water supply facilities are installed shall not succeed to the collection charges and all kinds of fines for negligence under Article 34 without any special circumstance, such as taking part in the illegal acts such as installation or maintenance of the water supply facilities, or taking part in the construction or maintenance of the building where the water supply facilities installed without the approval of the market.

However, in light of the records, the person who performed the construction of illegal water supply system in the building of this case without the approval of the market and used water supply by the plaintiff was not the plaintiff but the non-party, and the plaintiff purchased and used the building of this case without knowing the fact that the water supply was illegally supplied as above. Since the water rate was imposed at a higher than 2 and 3 times the ordinary gas rate than the ordinary water rate in September 1996, it can be seen that the defendant investigated whether the water supply was abnormal in the course of the plaintiff's objection to the defendant and discovered the illegal water supply. On the other hand, there is no evidence to prove that the plaintiff committed fraud or other unlawful acts with the intent

Nevertheless, the lower court’s determination that all the imposition of the fine for negligence and the fine for negligence for facility contributions was lawful solely on the grounds as indicated in its reasoning is erroneous by misapprehending the legal principles as to Article 34(2) and (3) of the above-mentioned Water Supply Ordinance and violating the rules of evidence, thereby adversely affecting the conclusion of the judgment. The allegation pointing this out is justified.

4. Conclusion

Therefore, the part of the judgment of the court below concerning the water supply fee, fine for negligence, and fine for negligence for facility contributions shall be reversed, and this part of the case shall be 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.

Justices Kim Jong-sik (Presiding Justice)