[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] Where the head of the Gu imposes a waste disposal charge calculated by including the area of resident convenience facilities on the site area which serves as the basis for calculating expenses for installing waste disposal facilities pursuant to the provisions of the Songpa-gu Seoul Metropolitan Government Ordinance on Calculation of Expenses for Installation of Waste Disposal Facilities pursuant to the Housing Site Development Promotion of Songpa-gu Seoul Metropolitan Government Ordinance on the Calculation of Expenses for Installation of Waste Disposal Facilities pursuant to the Housing Site Development Promotion of Songpa-gu and Assistance, etc. to The case holding that the above ordinances are invalid because they are different from those of a new legislation beyond the scope of delegation by expanding

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. 13170, Feb. 3, 2015; hereinafter “Waste Facilities Promotion Act”) provides that a person who intends to develop a multi-family housing complex or a housing site in excess of the scale prescribed by Presidential Decree (hereinafter “project implementer”) shall pay to the head of a Si, etc. having jurisdiction over the relevant area the amount equivalent to waste disposal facilities or installation expenses prescribed by Presidential Decree 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 of installation expenses, payment procedure, etc. shall be prescribed by Presidential Decree (paragraph

Article 4 of the Enforcement Decree of the Waste Facilities Promotion Act (hereinafter “Enforcement Decree”) provides that “waste disposal facilities prescribed by Presidential Decree” under Article 6(1) of the same Act shall mean 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 incurred in purchasing the site for facilities and the cost incurred in installing the facilities (paragraph (3)), and other necessary matters concerning calculation of the amount shall be prescribed by Municipal Ordinance of a Special Self-Governing Province, a 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 of the Songpa-gu Seoul Metropolitan Government Ordinance on the Calculation of Costs for Installation of Waste Disposal Facilities under Housing Site Development (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 (Article 1(1)). However, Articles 4(3) and 8 (hereinafter “the instant ordinance provisions”) provide that the site area shall be calculated by adding up the areas necessary for the installation of facilities, convenience facilities for residents, and the installation of green belt zones, and [Attachment Table] provides that the area specified in the detailed standards shall include the area of convenience facilities for residents equivalent to 10% of the site area of the facilities (waste disposal facilities, the management dong, the tea, etc.) in the total site area, and the project operator shall install convenience facilities for neighboring residents within the scope of 10% of the cost for installation of incineration facilities or food waste disposal facilities.

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 the project implementer do not include the convenience facilities for residents, but does not include the cost of installing the convenience facilities for residents.

(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 Facilities Promotion Act has imposed an obligation to install facilities for the convenience of residents at an agency installing waste disposal facilities, so in principle, an agency installing waste disposal facilities shall bear the expenses for such installation, and no person shall transfer such expenses to the project implementer, except

(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, they should 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 mayor, etc. on the duty to install the convenience facilities for residents by means of his/her own account (tax of residents) may result in a violation of the principle of equity. In so determining, the lower court erred by misapprehending the legal doctrine on

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 Park Sang-ok (Presiding Justice)