beta
(영문) 대법원 1971. 6. 22. 선고 71누45,46 판결

[급수사용료초과처분취소][집19(2)행,009]

Main Issues

In determining the rate of water supply, differentials according to the classification of consumers shall not be considered against the spirit of Article 9 of the Constitution.

Summary of Judgment

A person who operates a bath under his/her business permission using the water supply system prior to the water supply system in his/her name is a water supply user under Article 2 (5) of the Seoul Special Metropolitan City Water Supply Ordinance, and therefore, he/she is a person who has a legal interest in the imposition of the water supply fee for his/her wife.

[Reference Provisions]

Article 9 of the Constitution

Plaintiff-Appellant

Plaintiff 1 and one other

Defendant-Appellee

Seoul Special Metropolitan City Mayor

Judgment of the lower court

Seoul High Court Decision 70Gu414 delivered on April 6, 1971

Text

All appeals by the plaintiffs are dismissed.

The costs of appeal are assessed against the plaintiffs.

Reasons

The plaintiffs' attorney's first ground of appeal is examined.

The plaintiff 1, as the husband of the plaintiff 2, who is the owner of the water prior to this case, operated the bath bath under his own business permission using the water supply system under the above water prior to his own name, was the plaintiff 2 who was the owner of the water prior to this case, and therefore, the plaintiff 1 was the owner of the water supply system under Article 2 subparagraph 5 of the Water Supply Ordinance of the defendant 1, and therefore the plaintiff 2 was the owner of the above water supply facilities and had a legal interest in each of the above plaintiff 2. However, the judgment dismissed the plaintiff's claim for the main claim on which the original judgment was mobilized with the same reasoning as that of the plaintiff 1's claim. However, according to this decision, it was obvious that the court below dismissed the above plaintiff 2's main claim on the same disposition for the same reason as that of the above plaintiff 2's claim. Thus, it is clear that the plaintiff 1's claim was dismissed as the plaintiff 1's appeal area, and therefore, it is not justified.

The second and third points of the Dong shall be examined.

1. Even though the Defendant City's waterworks business was an exclusive public corporation established for the public welfare of the society, the Defendant City's main owner set a high rate of water supply compared to the completion of the ordinary course of water supply for the benefit of the general public using the waterworks, and it cannot be said that it was against the spirit of Article 9 of the Constitution, therefore, the lower court's decision was without merit, which, under the above purport, determined the different rate of water supply for bathing business operators by classifying the water supply of bathing business from Class A and B under Article 16 subparagraph 1 of the Enforcement Rule of the Water Supply Ordinance, Article 16 subparagraph 1, subparagraph 5 and 6 of the water supply classification table, Article 16 subparagraph 1 of the Enforcement Rule of the Defendant City's Water Supply Ordinance, which was contrary to Article 9 of the Constitution, to the effect that it was against the rejection of the Plaintiff 2's assertion.

2. In addition, inasmuch as the provision of water supply to the places of business where the rest room facilities of the Defendant were installed in whole or in part at the time of display, according to the evidence that the original judgment was adopted by him, it is not recognized that the Defendant’s each disposition of this case was legitimate, which was set and imposed on September 1, 1970 and October 10 for the supply of water for Plaintiff 2 in wartime, by recognizing the fact that the second floor of the rest room of the Plaintiff 1 installed 44 seats in the rest room and received special charges from the end of July 1970, August, and September, September, 1970, and that the Defendant’s each disposition of this case was legitimate, as alleged in No. 2, as otherwise alleged in the No. 2 of the lawsuit, as otherwise alleged.

Therefore, according to the unanimous opinion of all participating judges, Article 14 of the Administrative Litigation Act, Articles 400, 95, and 89 of the Civil Procedure Act are decided as per Disposition.

Justices of the Supreme Court (Presiding Judge) Ma-dong (Presiding Judge) and Ma-dong B-Jed Han-gu