[2] Whether the waste disposal facilities to be installed by a project implementer under the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs include resident convenience facilities and the corresponding amount of the cost of installing waste disposal facilities include the cost of installing resident convenience facilities

[3] In a case where the head of the Gu imposes a waste disposal facility charge calculated by including the area of resident convenience facilities on the site area which serves as the basis for calculating the cost of installing waste disposal facilities and the installation and operation of funds on the project implementer who implements the Bogeumjari Housing District development project under Article 6 of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, the case holding that the above provision of the above Ordinance is invalid since it is nothing more than that of a new legislation beyond the scope of delegation by expanding it beyond the scope of interpretation possible under the upper law

Where a statute delegates a certain matter to a municipal ordinance with respect to a specific matter, the legislative purpose and contents of the relevant statutory provision, the structure of the relevant provision, and the relationship with other provisions shall be comprehensively examined in determining whether the municipal ordinance complies with the limits of delegation, and whether a new legislation has been made beyond the bounds of the terms used in the delegation provision by expanding or reducing the scope of the terms used in the delegation provision shall also be taken into account.

[2] In light of the language, structure, etc. of the provisions of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs, it does not include resident convenience facilities in waste disposal facilities to be installed by a project implementer, but does not include the cost of installing waste disposal

[3] In a case where the head of the Gu imposes waste disposal charges calculated by including the area of resident convenience facilities in the site area, which serves as the basis for calculating waste disposal facility installation costs, pursuant to Article 6 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facility Promotion Act”), on a project implementer who implements a Bogeumjari Housing Zone development project, which is obligated to install waste disposal facilities or pay an amount equivalent to such installation costs, the case held that the court below erred by misapprehending the legal principles of the above Ordinance, which affected the determination that the above municipal ordinance provisions are legitimate, on the ground that it is nothing more than the scope of possible interpretation of the Seocho-gu Seoul Metropolitan Government Ordinance on Collection of Waste Disposal Facilities and Establishment and Operation of Funds, since it was nothing more than a new legislation that goes beyond the bounds of delegation by expanding the scope of possible interpretation of the Waste Facility Promotion Act.

1. According to Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulation, in cases where a local government establishes a municipal ordinance concerning the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, the statutory delegation is required. Therefore, the municipal ordinance stipulating matters concerning the restriction on the rights of residents or the imposition of obligations on residents without the delegation of a law has no effect (see, e.g., Supreme Court en banc Decision 2010Du19270, Nov. 22, 201

In cases where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation shall be made by comprehensively examining the legislative purpose and contents of the relevant statute provisions, the structure of the relevant provision, and the relationship with other provisions, etc. In addition, whether a new legislation was made beyond the bounds of the terms used in the delegation provision by expanding or reducing the scope thereof beyond the bounds of the terms used in the delegation provision (see Supreme Court Decision 2017Du56193, Aug. 30, 2018, etc.).

2. Article 6 of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facilities Promotion Act”) provides that a person who intends to develop a multi-family housing complex or housing site exceeding the scale prescribed by Presidential Decree (hereinafter “project implementer”) shall pay to the head of a Si, etc. having jurisdiction over the relevant area, an amount equivalent to waste disposal facilities or installation expenses prescribed by Presidential Decree (hereinafter “the amount corresponding to installation expenses”) to treat wastes generated from the relevant multi-family housing complex or housing site (hereinafter “the amount corresponding to installation expenses”), and the Mayor, etc. shall use the amount of installation expenses paid for the installation of waste disposal facilities to treat wastes generated from the relevant multi-family housing complex or housing site (paragraph (2)), the method of calculating the amount corresponding to installation expenses, payment procedure,

Article 4 of the Enforcement Decree of the Waste Facilities Promotion Act (amended by Presidential Decree No. 25165, Feb. 11, 2014; hereinafter “Enforcement Decree”) provides that “waste disposal facilities prescribed by Presidential Decree” under Article 6(1) of the Waste Facilities Promotion Act means incineration facilities and food waste disposal facilities to dispose of wastes generated from the relevant area, and the amount of such installation expenses shall be calculated by dividing the cost for the purchase of the site for facilities and the cost for the installation of facilities into the cost for the purchase of the site for facilities (paragraph (3)), and other necessary matters concerning the calculation of the amount shall be prescribed by ordinances of the Special Self-Governing Province/Si/Gun/Gu having jurisdiction over the relevant area (Paragraph (4)

According to the delegation of Article 4(4) of the Enforcement Decree, Article 5-2 of the Seocho-gu Seoul Metropolitan Government Ordinance on the Collection of Costs for Installation and Operation of Waste Disposal Facilities and the Establishment and Operation of Funds (hereinafter “instant Ordinance”) provides that the cost for the purchase of a site shall be calculated by multiplying the cost for the purchase of the site by the unit price for the purchase of the site and the area of the site. However, Article 5-2 of the said Ordinance (hereinafter “instant Ordinance”) provides that the cost for the installation of facilities, convenience facilities for residents, and the installation of green belts shall be calculated by adding the area necessary for the installation of facilities, convenience facilities for residents, and the installation of surrounding green belts shall be included in [Attachment 1] set forth in [Attachment 1] to include the area equivalent to 10% of the total area of the facility site

3. Ultimately, the instant municipal ordinance provisions, which served as the basis for the disposition of imposition of the instant waste disposal facility installation costs, stipulate that the project implementer shall be liable to pay the amount corresponding to the cost of installing residents’ convenience facilities. Therefore, for the validity of such municipal ordinance provisions, the statutory delegation should be required, and if it was enacted without such delegation, the said provision

However, in light of the language, structure, etc. of the provisions of the Waste Facilities Promotion Act, it is interpreted that the waste disposal facilities to be installed by a project implementer do not include the convenience facilities for residents, but does not include the cost of installing the convenience facilities for residents. The reasons are as follows

(1) Article 2 of the Wastes Control Act provides that “waste disposal facilities” means waste disposal facilities under Article 2 of the Wastes Control Act, and Article 20 of the same Act provides that an agency installing waste disposal facilities shall install convenience facilities for local residents, including sports facilities, in consultation with the support consultative body, on the site of the relevant waste disposal facilities or in the vicinity thereof, as prescribed by Presidential Decree. As such, waste disposal facilities and resident convenience facilities are clearly distinguishable from the relevant Acts and subordinate statutes, and resident convenience facilities are not naturally included

(2) The obligation to be borne by a project implementer under Article 6 of the Waste Facilities Promotion Act and Article 4 of the Enforcement Decree is only the date on which waste disposal facilities are installed or installed.

(3) Article 20 of the Waste Facilities Promotion Act imposes a duty to install convenience facilities for local residents, including sports facilities, on the “waste disposal facility installation institution” in certain cases. Article 2 Subparag. 2 of the Waste Facilities Promotion Act defines “waste disposal facility installation institution” as “the Minister of Environment, the head of a local government, the head of a landfill site management corporation, etc. who intends to install and operate a certain waste disposal facility.” As can be seen, the obligation to install resident convenience facilities is the head of a local government, etc.

(4) The Waste Facility Promotion Act imposes an obligation to install resident convenience facilities on an agency installing waste disposal facilities, in principle, to bear the installation costs of the agency installing waste disposal facilities, and may not transfer such costs to the project implementer, except as otherwise expressly provided for in statutes.

(5) Where a project implementer selects to install directly waste disposal facilities, there is no obligation to install facilities for residents' convenience, and where the project implementer selects the payment of expenses, an unreasonable result arises between the installation of facilities for residents' convenience and the payment of expenses.

(6) Charges shall be exceptionally acknowledged in tax-related relations, and the form of charges shall not be abused in performing the State’s general task (see Constitutional Court en banc Decision 2006Hun-Ba25, Dec. 27, 2007). The Wastes Control Act imposes the responsibility to take necessary measures, such as installing and operating waste disposal facilities so that wastes can be properly treated against the State and local governments (Article 4), and the cost of installing waste disposal facilities is practically bearing the nature of the charge (Article 4), it is not desirable to expand the scope of the cost of installing waste disposal facilities without any explicit ground.

Therefore, the provisions of this case are nothing more than a new legislation that goes beyond the bounds of delegation by expanding them beyond the scope of possible interpretation of the Act on the Promotion of Waste Facilities and the Enforcement Decree thereof, and thus, it shall be deemed null and void. The mere fact that there is the necessity or feasibility for a project implementer to bear the cost of installing convenience facilities for residents, the provisions of this case should be enacted within the scope of delegation of higher statutes, but it cannot be recognized that the provisions of the Ordinance enacted with the purport of imposing new burden on the

4. Nevertheless, the lower court determined that the instant disposition was lawful on the grounds that the instant municipal ordinance provisions cannot be deemed null and void, and that the instant municipal ordinance provisions included the area of the convenience facilities when calculating the site area pursuant to the instant municipal ordinance provisions, on the grounds that if the cost of installing the waste disposal facilities to be paid by the project implementer is not included in the cost of installing the convenience facilities for residents, the burden of the head of the Gu, etc. on the duty to install the convenience facilities for residents by calculating the residents’ taxes (the residents’ taxes) may result in a violation of the principle of equity. The lower court erred by misapprehending the legal doctrine on the principle

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)