beta
(영문) 대법원 1977. 12. 13. 선고 77누85 판결

[추징금부과처분취소ㆍ과태료부과처분취소][공1978.3.1.(579),10566]

Main Issues

Whether Article 30 (4) and Article 41 of the Seoul Metropolitan Government Water Supply Ordinance exceed the scope delegated by the Local Autonomy Act.

Summary of Judgment

Articles 30 (4) and 41 of the Seoul Metropolitan Government Water Supply Ordinance shall be effective as delegated by Articles 126 and 128 of the Local Autonomy Act.

[Reference Provisions]

Articles 30 (4) and 41 of the Seoul Metropolitan Government Water Supply Ordinance, Articles 126 and 128 of the Local Autonomy Act

Plaintiff-Appellant

[Judgment of the court below]

Defendant-Appellee

Attorney Park Yong-young, Counsel for the defendant-appellant

original decision

Seoul High Court Decision 76Gu58 delivered on March 3, 1977

Text

The appeal shall be dismissed. The costs of appeal shall be borne by the plaintiff.

Reasons

The grounds of appeal No. 1 by the Plaintiff’s attorney are examined.

However, Article 41 of the Water Supply Ordinance, which provides that a local government shall impose or collect a fee for the use of public facilities in a fair manner, provides that the fee for the use of water in a case where the water supply for different uses is measured as a single water pumping machine with the provisions of Article 130(1) of the Local Autonomy Act, provides that the fee for the use of water supply shall be calculated by applying a high rate of business type, and the fee for the use of water supply shall not be deemed to be invalid as a matter of course, provided that the person who is exempted from the collection of the fee for the use of water by fraud or other wrongful means, in addition to the collection of the exempted fee for the collection of the fee for the use of the water supply, may be punished by a fine for negligence. The court below's determination that the provisions of the Water Supply Ordinance are applied to the provisions of Articles 126 and 128 of the Local Autonomy Act, and it cannot be deemed that there is a violation

The second ground of appeal is examined.

When examining the whole purport of the evidence presented by the court below in comparison with the records, the two arguments in this case were reviewed as follows: the plaintiff was used as the source of use and the source of use, which was connected to the water supply pipes for public bath in December 1971 from the construction of the building of this case to the water supply pipes connected to the public bath for the above 2 water supply pipes, not the fact-finding. Thus, it cannot be viewed that the facts were found to be unlawful without the evidence, and even if examining the relation of the evidence preparation conducted in the above recognition, it cannot be viewed that there was a mistake of misconception of facts against the rules of evidence in violation of the rules of evidence. The argument that there was insufficient deliberation on this is correct.

Next, the court below acknowledged that the parking lot water was used for the above parking lot from around August 1975 for the plaintiff's main bath water. However, in its reasoning, the court below did not hold that the plaintiff used the bath water which was less than the use fee for the above parking lot from December 12, 1971 to September 1975 for the first type of business, but did not use it for the same period as the parking lot water, and it did not hold that the plaintiff used it for the first type of business as the first type of parking lot for the same business, including the above user facility and the non-permanent change site for the first type of business recognized as well as the use from December 12, 1971.

Therefore, the appeal is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Hah- Port (Presiding Justice)