(영문) 서울고법 1990. 5. 9. 선고 89구7391 제5특별부판결 : 파기환송[배출부과금부과처분취소청구사건][하집1990(2),512]
Where it is found that the degree of pollutants exceeds the permissible emission level prescribed by the former Environmental Conservation Act by a controlling public official, the calculation of emission period in the imposition of emission charges.
If the degree of pollutants discharged from a place of business that manufactures or processes leather products is found to exceed the permissible emission level prescribed in the former Environmental Conservation Act by a controlled public official, and thus the competent Mayor/Do Governor receives an order to improve water pollution prevention facilities from the competent Mayor/Do Governor, even if the water pollution prevention facilities of the said place of business were operated normally before the above improvement order was issued and immediately reported to the Mayor/Do Governor, the pollutant discharge period necessary to calculate the discharge dues, etc. to be imposed on the said place of business shall be deemed to be from the date of collecting
Article 17 of the former Environmental Conservation Act (Abolition), Article 19-2 of the same Act, Article 17-6 of the Enforcement Decree of the same Act, Article 17-9 of the Enforcement Decree of the same Act, Article 17-12 of the same Enforcement Decree.
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)
Dr. Matsan Co.
The Governor of Gyeonggi-do
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff.
The Defendant’s imposition of discharge dues of KRW 66,224,60 against the Plaintiff on June 20, 1989 is revoked.
The judgment that the lawsuit costs shall be borne by the defendant.
1. It is necessary to order the Plaintiff to pay the same amount as the 6th anniversary of the above 4th anniversary of its establishment; 5th anniversary of the above 6th anniversary of its imposition standards; 4th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of its imposition standards; 4th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of the above 6th anniversary of its imposition standards; 4th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of the above 6th anniversary of its imposition standards; 5th anniversary of the above 6th anniversary of the previous imposition standards of pollutants; 1st of the above 6th anniversary of the previous imposition standards of pollutants; 5th of the previous imposition of pollutants to the Plaintiff’s final imposition of pollutants.
2. The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition regulations. The plaintiff's water pollution prevention facilities installed in the above factory contains active sludge, which is biological treatment methods, and purify wastewater. At night on April 14, 1985, the plaintiff's above water pollution prevention facilities' water pollution prevention facilities flow excessive wastewater into the above facilities due to non-party corporation's non-party corporation's accommodation at night, a temporary disturbance occurs, and the pollutants discharged from the above factory's final discharge outlet, such as the above mentioned above, exceed the permissible emission levels. However, the plaintiff purchased active 12.5 tons in both two days and operated normally, and requested the defendant to submit a report on the same pollution level again from the above factory's normal discharge facilities to the non-party corporation, which was designated as an agent for environmental pollution measurement, for the same reason that the plaintiff's water pollution prevention facilities were not discharged from the above factory's normal pollution level, and the defendant again requested the defendant to present the same order to improve the pollution level on the same day.
According to the provisions of Article 16-2 (1) of the Environmental Conservation Act, Article 17-5 (1) through (5), Article 19-2 (1) and (3) of the Enforcement Decree of the same Act, Article 17-9 (1) 1, and Article 17-13 (2) of the Enforcement Decree of the same Act, when a business operator makes a voluntary report stating the defects of preventive facilities and the scheduled date of improvement, etc. due to defects in the preventive facilities, etc., the head of the environment office or Si/Gun/Gu shall, without delay, check pollutants discharged from the relevant business operator and check whether the improvement of the preventive facilities is completed, and if the business operator makes a report on the implementation of the improvement order, he shall promptly check whether the improvement of the emission facilities is completed, and if the business operator fails to report on the implementation of the order within the period prescribed in Article 17 of the same Act, the period prescribed in paragraph (1) 1 of the same Article shall be within the period prescribed by the Ordinance of the Ministry of Health and Welfare; and if the business operator makes a voluntary report within the period prescribed in paragraph (2).
Therefore, as seen earlier, although the degree of water speed pollutants discharged from the above factory of the plaintiff management exceeded the permissible emission level as stipulated in the Environmental Conservation Act, the plaintiff did not file a voluntary report despite the fact that the plaintiff was discovered to the control official of the Seoul Environmental District Office and received an order to improve the water pollution prevention facilities from the defendant, even if the water pollution prevention facilities of the plaintiff factory were operated normally on April 17, 1989, before the defendant issued the above improvement order, and reported this to the defendant on the same day, the period of pollutant discharge necessary to calculate the discharge dues to be imposed by the defendant against the plaintiff should be from the date of collecting the pollutants to the date when the plaintiff reported that the order was complied with. Therefore, the disposition of this case by the defendant, which calculated the discharge dues to be paid by the plaintiff in accordance with each provision of the Environmental Conservation Act, is legitimate.
3. If so, the plaintiff's claim of this case seeking revocation on the ground that the disposition of this case was illegal, is without merit, and thus, it is dismissed. The costs of lawsuit are assessed against the plaintiff as the losing party. It is so decided as per Disposition.
Judges Kim Jong-sung (Presiding Justice)