The Defendant’s disposition of imposition of excess dues of KRW 1,303,020,520 against the Plaintiff on November 9, 2007, which exceeds KRW 858,460,57, shall be revoked.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of a lawsuit shall be three-minutes, and such two-minutes shall be borne by the plaintiff, and the remainder by the defendant respectively.

A. The Plaintiff is running a manufacturing business, such as automobile parts and heavy equipment parts, with a report on the installation of emission and preventive facilities for air pollutants generated in the course of manufacturing products within the factory (hereinafter “this case’s dust-generating facilities”).

B. On July 24, 2007, the Defendant: (a) requested an air pollution test to the Health and Environment Research Institute of Incheon Metropolitan City to examine air pollution in order to verify compliance with the permissible emission levels of pollutants against the Plaintiff’s accommodation facilities of this case; and (b) conducted the inspection on July 27, 2007, it was confirmed that dust from 2,879.3mg/S, which exceeds the permissible emission levels of dust, was discharged from the relevant concentration facilities of this case.

C. On August 1, 2007, the Defendant issued an improvement order for the instant facilities to the Plaintiff, and on August 14, 2007, the Plaintiff submitted an improvement plan for the instant facilities ( October 31, 2007 scheduled date of improvement) to the Defendant on August 14, 2007, and reported the completion of improvement to the Defendant on October 31, 2007 after completing the repair work.

D. On November 9, 2007, the Defendant sent a business trip to the Plaintiff’s place of business to verify the implementation status of improvement of the instant facilities, and imposed an excess effluent charge of KRW 1,303,020,520 on the Plaintiff on Nov. 9, 2007 (hereinafter “instant disposition”). On Nov. 9, 2007, the Defendant imposed an excess effluent charge of KRW 1,30,020 [70 per kilogram70% of the amount imposed per pollutant 1 kilogram64,532 kilograms of the pollutant emission volume exceeding the permissible emission levels of KRW 770% of the amount imposed on the Plaintiff” [2,779,319,319 cm/h x 10h/day x 85 days of daily discharge x 5.4 days of the discharge period x 1 (regional coefficient) x 4.6249 (Annual dues) x 1.05 (number of violations)

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Gap evidence 2-1 through 3, Gap evidence 10, Gap evidence 12-15, Gap evidence 17, 20, Eul evidence 2-4, Eul evidence 3, Eul evidence 4-3 through 7, Eul evidence 4-5 through 7 (including provisional number), Eul evidence 8-1 through 4,6, 12, 13, Eul evidence 11-1 through 13, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) An error in calculating the emission period

Article 19 of the former Clean Air Conservation Act (amended by Act No. 8404 of Apr. 27, 2007; hereinafter “the Act”) provides that a business operator who emits air pollutants discharges air pollutants in excess of the permissible emission levels shall impose excess emission levels. Article 18(1)2 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 20383 of Nov. 15, 2007; hereinafter “Enforcement Decree of the Act”) provides that the emission period shall be “from the beginning date of the discharge of pollutants to the scheduled date of completion of the improvement order, etc.” In calculating emission charges, the period of completion of the implementation refers to the date of the actual implementation of the improvement order. Thus, it should be interpreted that the completion date of the improvement and repair work for the facilities in the instant case was the expiration date of the emission period, and thus, the Defendant calculated the emission period as the expiration date of the emission period as of Oct. 31, 2007.

(2) An error in calculating operating hours

The Defendant calculated the daily operating hours of the instant facilities based on the date of operation of emission and preventive facilities prepared by the Plaintiff, but in fact, the Plaintiff did not operate the instant facilities within the said operating hours, but rather, operated the instant emission charges based on the operating hours of four hours a day, which is part of the manufacturing process of the products (referring to the removal of metal materials by putting an unnecessary part of metal products removed from the main mold into a melting bar, thereby melting the high-tension oxygen.). If the Defendant calculates working hours by multiplying the daily operating hours by the number of products produced by the number of products produced per day, the hours of operation of the instant facilities are merely four hours per day by the average working hours of four hours a day, and should be calculated based on the operating hours of four hours a day.

(3) The credibility of the result of excess concentration measurement

The Defendant: (a) requested the Incheon Metropolitan City Health and Environment Research Institute to inspect the contamination level of the instant dust facilities on July 27, 2007; and (b) conducted the inspection on the contamination level on July 27, 2007; (c) calculated and imposed the excess discharge dues based on the above numerical value; (d) the Plaintiff entered into a measurement agency contract with Nonparty 1, a specialized company for air pollutants measurement, and conducted an inspection on the pollution level on a regular basis twice a year; (e) the result of the inspection on the contamination level conducted by Nonparty 1, which was within the permissible scope after measuring the contamination level conducted by the Defendant; and (e) the inspection conducted by Nonparty 1, a public prosecutor conducted by the Defendant on July 30, 2007, which was much lower than the Defendant’s inspection result by Nonparty 1, which was 158.5§¯/S, it is difficult to believe that the noise level measured by the Incheon Metropolitan City Environment Research Institute was more than 28 times the permissible emission level, 28.3.000 m dust.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On July 27, 2007, the Defendant: (a) requested the Incheon Metropolitan City Health and Environment Research Institute to conduct a pollution level inspection for the instant facilities on the basis of the inspection of the pollution level; (b) upon detection of dust in the 2,879.3§¯/S cubic metres exceeding the permissible emission level; and (c) on August 1, 2007, ordered the Plaintiff to take necessary measures to lower the level of pollutants below the permissible emission level.

(2) On August 14, 2007, the Plaintiff: (a) set up a plan for improvement, such as replacing the sloping layer in the instant facilities; and (b) submitted to the Defendant an improvement plan to improve the frame by October 31, 2007; and (c) filed a report on the completion of improvement to the Defendant on October 31, 2007 after performing repair works in accordance with the said improvement plan.

(3) The Plaintiff: (a) requested Nonparty 1 to inspect the pollution level of the instant intensive facilities on July 30, 2007; (b) on September 4, 2007; (c) on September 11, 2007; (d) on October 17, 2007; and (e) on October 10, 207, the Plaintiff collected samples on behalf of Nonparty 3, who is the sample analysis personnel; and (c) on July 30, 2007, each of the above tests conducted a collection of samples on behalf of Nonparty 2, who is the sample analysis personnel, on behalf of Nonparty 3; and (d) on each of the tests conducted on September 30, 207, each of the results indicated in a simplified form, which is not a atmosphere measurement record, in the inspection conducted on September 30, 2007; and (e) on the 61.5m/S meters from the date of the inspection conducted on September 4, 2007; and (e) on July 14/7, 20007.

(4) On November 9, 2007, based on the Plaintiff’s certificate of the date of operation of emission facilities and preventive facilities and the date of operation, the Plaintiff’s pollutant emission period from July 27, 2007, the date of collecting pollutants from the date of collecting pollutants from the date of the Plaintiff’s completion of improvement to October 31, 2007, the date of the Plaintiff’s completion of improvement set by 85 days subtracting 12 days of non-working days from July 31, 2007, and the daily operating hours set by 11 hours and 30 minutes of operation on the date of operating emission facilities and preventive facilities, excluding the point of time and time of rest, and calculated and imposed excess emission dues 1,303,020,520 won.

[Reasons for Recognition] Facts without dispute, Gap evidence 2-1 to 3, Gap evidence 6, Gap evidence 7-1 to 5, Gap evidence 11 through 19, Gap evidence 22, Eul evidence 1 through 3, Eul evidence 4-3 through 7, Eul evidence 5 through 8, Eul evidence 11 (including the number of 3) and non-party 2, non-party 4 witness of the court of first instance, the testimony of the court of first instance, the whole purport of the arguments, and the whole purport of the arguments.

D. Determination

(1) An error in calculating the emission period

(a) Articles 16, 19(1), 13(1), 14(1), 17(2), 18(1)2, and 28(2) of the Enforcement Decree of the Act may order the business operator who discharges air pollutants to take measures necessary to lower the level of pollutants in excess of the permissible emission levels (hereinafter referred to as “improvement order”) to the extent that the business operator discharges pollutants in excess of the permissible emission levels; (2) The business operator who has received the improvement order shall submit an improvement plan concerning the intended contents and period of improvement to the Minister of Environment; and (3) The Minister of Environment shall, in principle, report an improvement order to the Minister of Environment without delay if the business operator has received the improvement order concerning the emission of pollutants in excess of the permissible emission levels (referring to the date of collection of pollutants in excess of the permissible emission standards, if known, to the date of completion of the improvement order or the date of completion of the improvement order; (4) The Minister of Environment shall, in principle, calculate the emission period in excess of the scheduled emission levels or the date of completion of the improvement order.

(B) However, according to Article 19 of the Act, an excess charge is imposed according to the emission quantity, emission density, etc. of pollutants when the business operator who discharges air pollutants exceeds the permissible emission levels. In this case, the excess charge is imposed by the volume-based system by considering the type, emission period, emission quantity, etc. of pollutants. Accordingly, the excess charge functions to pressure prompt improvement of pollutants emission facilities as well as the characteristics of sanction against the emission of pollutants. From the perspective of the administrative agency, the business operator subject to the improvement order can report the implementation of the improvement order to the administrative agency and actually verify the implementation status thereof. In light of the above, the report on the performance of the improvement order is a report to the administrative agency requesting the verification of the implementation status of the improvement order. The report itself cannot be deemed as having the legal requisite effect that the improvement order is deemed as the expiration date of the emission period (in fact, even if the improvement work was not completed before the scheduled completion date, it is unreasonable to impose the excess emission charge even for the period exceeding the permissible emission levels on the ground that the business operator failed to report on the completion of the improvement order.

Therefore, the provision of Article 28(2) of the Enforcement Decree of the Act is deemed as the closing date of the emission period in principle, but it is reasonable to interpret that the date of the completion of the improvement work can be regarded as the closing date of the emission period in special circumstances, such as where the business operator actually completed the improvement work but delays only the completion report, and where there are special circumstances such as where it is clearly admitted by evidence (However, the completion date of the improvement work should be strictly limited only to cases where it is clearly admitted by evidence).

(C) In light of the above legal principles, the Plaintiff’s 6th improvement order was stated as follows: (i) the Plaintiff’s 6th improvement order was 6th day after the 6th day of construction work; (ii) the Plaintiff’s 6th day after the 6th day of construction work; (iii) the Plaintiff’s 6th day after the 7th day after the 6th day of construction work; (iv) the 6th day after the 6th day after the 6th day after the 6th day after the 6th day of construction work; (iii) the 6th day after the 6th day after the 6th day after the 6th day after the 6th day of construction work; (iv) the 6th day after the 6th day after the 6th day of construction work, the 1st day after the 6th day after the 6th day of construction work; and (iv) the Plaintiff’s 1st day after the 6th day after the 6th day of construction work, the 6th day after the 6th day of construction work was found to be in compliance with the present condition.

(D) Accordingly, in calculating the instant excess charges against the Plaintiff, the emission period of pollutants exceeding the permissible emission level from July 27, 2007 to September 30, 2007, when it was collected from the Plaintiff’s place of business (i.e., the maximum working day is 8/6-8/8 (Hadical leave), 9/1-9/2 (Hadical leave), 9/23-9/26 (Hadical leave), 9/30 (Regular leave of absence). The record 144 pages), the emission period is 56 days (66-day leave of absence).

(2) Whether the calculation of operating hours was erroneous or not

Article 18(1), (3), and [Attachment 4] of the Enforcement Decree of the Act provides that daily operating hours shall be calculated by multiplying the discharge measured as at the time of collecting pollutants by the daily operating hours. In this case, daily operating hours shall be indicated as the average of the daily operating hours for 30 days, which have been recently operated before measuring the discharge quantity. Considering the whole purport of arguments, the daily operating hours shall be indicated as Gap evidence 19, Eul evidence 2-4, Eul evidence 8-12, and 13, the daily operating hours at the time of the report on installation of emission facilities of this case were written as 10 hours. The daily operating hours at the time of the instant report on installation of emission facilities of this case prepared by the plaintiff at the plaintiff's workplace are written from 08:30 to 20:0, the daily operating hours at the time of calculating the discharge quantity of pollutants, and the daily operating hours at the time of the plaintiff's employee shall be calculated as 11:30 to 12,000, the objective operating hours at the time of this case.

In light of the Plaintiff’s 2-day operation hours, the Plaintiff asserted that the 20-day operation hours should be calculated on the basis of average 4 hours per day, and that the 4-day operation hours should be calculated on the basis of actual operation hours, and that the 20-day operation hours should not be seen as objective data on the operation hours, 20-day operation hours are written on the basis of the Plaintiff’s 20-day production time and the production date submitted by the Plaintiff as evidentiary materials in the instant lawsuit (see subparagraph 28), 3-day operation hours are not written on the basis of the Plaintiff’s 20-day operation hours, 4-day operation hours per day, and 1-day operation hours cannot be seen as objective data on the operation hours, 3-day production time, and 20-day operation hours are written on the basis of the Plaintiff’s 20-day production time and 20-day production time as well as on the basis of the Plaintiff’s 20-day production time confirmation from the date of completion of the improvement order.

(3) The credibility of the result of excess concentration measurement

As evidence No. 7 1 through 5, evidence No. 11, evidence No. 12-3, and evidence No. 5-3, respectively, and witness No. 2 of the court of first instance, the defendant requested the Incheon Metropolitan City Health and Environment Research Institute which is an inspection institution of pollution level under Article 35-3(2) of the former Enforcement Rule of the Clean Air Conservation Act to conduct an inspection of pollution level of 5, and the above Public Health and Environment Research Institute which is four including Non-party No. 5, etc. visiting the plaintiff's place of business to collect dust of the above 707-54, which is not an automatic sample collection method of the Ministry of Environment, and it is not a result of analysis conducted by Non-party No. 1, 879-3, and 7, which is no more than 1,000,000 if it were found that the plaintiff collected dust samples of the above 9-1,000,000 square meters of the above 9-2,07.

3. Conclusion

Therefore, the reasonable excess charges are 858,460,577 won (1,303,020,520 won x 56/85, and less than won) and the portion exceeding 858,460,577 won out of the disposition of this case shall be revoked as unlawful. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Thus, the judgment of the court of first instance is unfair with a different conclusion, and it is so decided as per Disposition by accepting part of the plaintiff's appeal.

Judges Yoon Jae-ho (Presiding Judge) (Presiding Judge)