[2] In a case where joint prevention facilities are installed in order to jointly treat water pollutants discharged from wastewater discharge facilities and the concentration of water pollutants by place of business cannot be measured, whether a business operator's imposition disposition of discharge dues imposed upon each business operator on each business operator based on the "ratio of allocation of discharge dues by place of business" under Article 45 (1) 6 of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (negative in principle)

[3] In a case where the operating organization of joint prevention facilities for water pollutants is a cooperative under the Small and Medium Enterprise Cooperatives Act, whether the phrase "a clause setting the ratio of allocation of emission dues by place of business" under the regulations constitutes "matters imposing obligations on members" subject to approval by the president of the Korea Federation of Small and Medium Business

[2] Article 35(1), (4), and (6) of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013); Article 45(1)6, and Article 45(2) of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, the purpose of Article 35(1), Article 45(1)6, and (2) of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act is to ensure that the installation of joint prevention facilities for the joint treatment of water pollutants discharged from wastewater discharge facilities is difficult to accurately measure the quantity of wastewater discharged and the concentration of water pollutants in each place of business. Therefore, if a business operator voluntarily determines the ratio of the allocation of the discharge dues, he/she may respect it and impose the discharge dues calculated for the total water pollutants discharged

Therefore, in cases where business operators installed joint prevention facilities to jointly treat water pollutants discharged from wastewater discharge facilities, and in cases where it is impossible to measure wastewater discharged and water pollutants concentration in each place of business, if business operators impose discharge dues on each business operator based on the "ratio of allocation of discharge dues for each place of business" stipulated in the Regulations on the Operation of Joint Prevention Facilities submitted by business operators, barring special circumstances, such imposition disposition of discharge dues cannot be deemed unlawful, barring special circumstances, such as that the allocation criteria prescribed in

[3] In addition to the contents and systems of Article 30(1)1, 2, and 30(1)4, Article 130(3), and Article 136 of the Small and Medium Enterprise Cooperatives Act, and Article 42(2)3 of the Enforcement Decree of the Small and Medium Enterprise Cooperatives Act, the approval of the competent authority’s regulations is a system that is recognized as part of the supervisory authority over the cooperative in order to guarantee public interest and harmony in the organization and operation of the cooperative, to ensure mutual interests between the cooperative and its members, and to coordinate mutual interests between the cooperative and its members, if the operating authority of the joint prevention facilities for joint treatment of water pollutants discharged from wastewater discharge facilities is a cooperative under the Small and Medium Enterprise Cooperatives Act, the phrase “a provision setting the ratio of the charges for each place of business” under the said regulations can be deemed as the basis for imposing the discharge dues, and thus, it cannot be deemed that the said provision itself causes or establishes the rights and obligations of its members.

1. Regarding the plaintiffs' grounds of appeal

Article 41(1)2(a) of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “Water Quality and Ecosystem Conservation Act”) imposes and collect excess discharge dues on and from business operators discharging water pollutants in excess of the permissible discharge levels in order to prevent or reduce water pollution and damage to aquatic ecosystems caused by water pollutants, and matters necessary for the methods and standards for calculating such excess discharge dues shall be prescribed by Presidential Decree.

Articles 45(1), 49(2) [Attachment Table 16] subparag. 1(a) and (b) of the former Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Presidential Decree No. 25045, Dec. 30, 2013) upon delegation set the standards for the imposition coefficient of the frequency of violations, which is one of the elements for the calculation of excess emission dues. According to the foregoing, “number of violations” refers to the number of violations, where orders for improvement, suspension of operation, cancellation of permission, suspension of use, or order for closure (hereinafter “order for improvement, etc.”) have been issued by discharging water pollutants subject to the imposition of excess emission dues in excess of permissible emission levels for each place of business, but the number of violations should be the number of violations during the last two years as of the date on which the violation subject to the imposition of dues was committed. On the other hand, where two or more violations have been ordered to take one improvement order, it shall be considered one violation, but the date of such violation

In full view of the structure and contents of the relevant laws and regulations and the purpose of the imposition coefficient system of the frequency of violations to apply the imposition rate of dues in cases where there is emission power such as pollutants, it is reasonable to interpret that "number of violations" of the imposition coefficient of the frequency of violations means the frequency of such violations, regardless of the type of water pollutants in cases where improvement order is issued.

The lower court, on October 4, 2012, determined that it was lawful to calculate the coefficient of the frequency of permissible emission by including both the chemical oxygen demand and the total nitrogen’s excess discharge on July 14, 2009, the total nitrogen’s standard excess discharge on September 14, 2009, the total nitrogen’s standard excess discharge on September 24, 201, and the total nitrogen’s standard excess discharge on March 24, 2010, when the Defendant imposed imposition of each excess discharge dues (hereinafter “each of the instant dispositions”) on the Plaintiffs on October 4, 2012.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interpretation and application of the coefficient

2. As to the Defendant’s ground of appeal

A. (1) Article 35 of the Water Quality and Ecosystem Conservation Act provides that a business operator shall install water pollution prevention facilities when he/she installs or alters the relevant discharge facilities (Paragraph (1). In such cases, the business operator may install joint prevention facilities to jointly treat water pollutants discharged from the discharge facilities, and in such cases, each business operator shall be deemed to have installed prevention facilities for water pollutants in his/her place of business (Paragraph (4). When the business operator installs and operates joint prevention facilities, he/she shall establish an operating body of the relevant facilities and appoint a representative (Paragraph (5)). In addition, matters necessary for the installation and operation of joint prevention facilities are delegated by the Ordinance of the Ministry of Environment (Paragraph

Article 45(1)6 of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act provides that where a business operator or the representative of a joint prevention facility intends to install joint prevention facilities, he/she shall submit to the Mayor/Do Governor the rules on the operation of the joint prevention facilities, including the rules on the operation of the joint prevention facilities, including the emission charges, administrative fines, penalty surcharges, and fines when it is impossible to measure the quantity of wastewater discharged from each workplace and the concentration of water pollutants at each workplace. In addition, the proviso of Article 45(2) provides that the payment of emission charges related to the operation and management of the joint prevention facilities

The purport of the aforementioned relevant provisions is to ensure the convenience and appropriateness in calculating the discharge dues, inasmuch as it is difficult for business operators to accurately measure the quantity of discharged water and the concentration of water pollutants in each business place when they install joint prevention facilities, and thus, if business operators voluntarily determine the rate of allocation of discharge dues, the administrative agencies respect it and allow business operators to share the discharge dues calculated for the total quantity of water pollutants discharged from joint prevention facilities according to the rate of apportionment set by business operators and impose them on each business operator.

Therefore, in cases where business operators installed joint prevention facilities to jointly treat water pollutants discharged from discharge facilities, and the concentration of water pollutants and water pollutants by place of business cannot be measured, barring special circumstances, such imposition disposition of discharge dues cannot be deemed unlawful, unless there are special circumstances, such as the imposition of discharge dues to each business operator based on the "share of discharge dues by place of business" stipulated in the Regulations on the Operation of Joint Prevention Facilities submitted by the business operators.

2) Meanwhile, Article 30(1) of the Small and Medium Enterprise Cooperatives Act provides that matters concerning budget and accounting (Article 130(1) (Article 1) and matters concerning imposition of subscription fees and expenses (Article 2(1)2) and other matters (Article 130(1)4 and (3) of the same Act that impose duties on members of the association (Article 130(1) shall be prescribed by the regulations, except as otherwise provided for in the articles of association. In addition, Article 136 of the same Act and Article 42(2)3 of the Enforcement Decree of the same Act provide that the competent authority shall entrust the president of the Korea Federation of Small and Medium Business with the authority to enact, amend, or repeal the regulations.

In addition to the contents and structure of the above relevant provisions, in full view of the fact that the approval of the competent authority's regulations is a system recognized as part of the supervisory authority over the cooperative in order to guarantee the public interest and harmony in the organization and operation of the cooperative, and to coordinate mutual interests between the cooperative and its members, if the operating organization of the joint prevention facilities is a cooperative under the Small and Medium Enterprise Cooperatives Act, "a clause that sets the rate of allocation of emission dues for each place of business" under the regulations can be the basis for imposing emission dues between the imposing administrative authority and the business entity, and it cannot be deemed that the nature of imposing and determining the rights and obligations of the cooperative members can not be deemed to result in the occurrence and determination of the relationship of imposition of emission dues. Therefore, it cannot be deemed that the provisions of the regulations fall

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) Articles 34(1)2 and 35(1) of the instant association’s articles of association (amended by Act No. 1139, Oct. 16, 2013) are matters to be resolved at a general meeting. “Enactment, amendment, or repeal of the bylaws” is a matter to be resolved at a general meeting, and the general meeting is opened with the attendance of a majority of all partners, unless otherwise expressly provided for in statutes, the articles of association, or

2) On August 31, 2012, the instant cooperative opened an extraordinary general meeting, and opened a new provision that adds emission dues, etc. to the type of “charges borne by members” (Article 10(7) and set the allocation standards for the emission dues, etc. when it is impossible to measure wastewater discharged from each business place and the density of water pollutants at each business place (Article 12(7) and passed the instant provision with the consent of 30 business entities from among 43 business entities among the members of the instant cooperative.

3) The instant provision on the apportionment of heavy metals, such as mercury, among the apportionments of effluents, when it is impossible to measure the quantity of wastewater discharged from each business place and the concentration of water pollutants, provides that ① Discharge dues shall be borne by the discharging company (No. 1); ② The apportionment ratio shall be calculated on February 2012, 2012, along with the data analysis of data for determining the apportionment of expenses due to the operation of the wastewater treatment plant (hereinafter “the instant research”). The apportionment ratio for the non-dong verification company shall be borne by the remaining company in accordance with the percentage ratio (No. 4).

4) The instant research service was voluntarily commissioned by the instant association. Of the leather manufacturers, the Nonparty professor, who provided the service, designated the Nam-do unemployment using raw skin, Young Lathere, a company using processing skin, and the Nam-do unemployment using fish as a representative company. The average of the result of collecting samples over three occasions, and set the amount as “mg/liter” per unit by the same type of business. The Nonparty calculated the total amount of pollutants by applying the volume of pollutants for each of the places of business, and set the ratio of the ratio of the emission charges to the chroxe according to the said ratio.

5) The instant association submitted the instant provision to the Defendant, and on October 4, 2012, the Defendant calculated the total amount of excess discharge dues for the instant common facilities at KRW 17,317,908,08,080, and then allocated it to the Plaintiffs by each workplace as prescribed by the instant allocation provision.

6) Since then, the instant association applied for approval to the Korea Federation of Small and Medium Business in accordance with the establishment of the instant provision on allocation, but on January 21, 2013, the part of subparagraph 4, which set the share ratio of “chin” under the instant provision on allocation, did not obtain approval, and obtained approval only for the remainder.

C. Examining these facts in light of the aforementioned legal principles, it is reasonable to view that each of the dispositions of this case against which the Plaintiffs imposed the excess discharge dues as above pursuant to the allocation regulations of this case is lawful. The reasons are as follows.

1) The instant provision on allocation was resolved by the general meeting of the instant association meeting, and there was no other material to deem that there was any defect in the process of resolution. Meanwhile, the instant provision on allocation does not fall under the regulations stipulating “other matters imposing obligations on members,” as prescribed by Article 30(1)3 of the Small and Medium Enterprise Cooperatives Act, and thus, it does not affect its validity even if it did not obtain the approval of the president of the Korea Federation of Small and Medium Business.

2) In light of the fact that: (a) the association of this case set the criteria for the supply of services to experts for the purpose of setting the allocation criteria for effluents; (b) its procedure and process are difficult to deem unlawful; and (c) the method of selecting each representative company by type of business of leather manufacturers is reasonable; and (d) the process of collecting samples and the analysis of samples conducted while conducting the research of this case does not seem to have any error in itself; and (b) it is difficult to readily conclude that the part of “chroman” in this case’s research results are considerably unreasonable.

D. Nevertheless, under the erroneous premise that the instant apportionment provision constitutes a stipulation stipulating the “other matters to be imposed on members,” as stipulated in Article 30(1)3 of the Small and Medium Enterprise Cooperatives Act, and the establishment requires approval of the president of the Korea Federation of Small and Medium Business, the lower court determined that the said provision which did not obtain such approval is invalid, and that the said provision cannot be deemed reasonable, and that the said provision does not constitute a reasonable standard. In so determining, the lower court erred by misapprehending the legal doctrine on approval of the regulations under the Small and Medium Enterprise Cooperatives Act and the determination of illegality of the standards for imposing excess emission dues in joint prevention facilities, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)