[2] Whether the Framework Act on the Management of Disasters and Safety applies to the radioactive accidents and chemical, biological and radiological radiation (affirmative in principle) / The management of radioactive accidents and chemical, biological and radiological accidents and the subject of cost sharing

Therefore, in a case where a radioactive waste is discovered that is not known who is the radioactive waste generator, the collection, classification, packing, and transportation of such radioactive waste and the delivery of such radioactive waste to a radioactive waste management agency is difficult to be deemed to constitute “management” of radioactive waste under the radioactive waste management Act. Therefore, the cost

[2] Article 8 of the Framework Act on the Management of Disasters and Safety (hereinafter “Disaster Safety Act”) can be deemed as a provision declaring that the Disaster Safety Act is the Framework Act on Disaster and Safety Management. The purport of Article 22(3) of the Act on Measures for the Protection of Nuclear Facilities, etc. and Prevention of Radiation Disasters (hereinafter “Disaster Prevention Act”) that the reporting and notification of radioactive accidents under Article 22(1) and (2) of the same Act shall be deemed as the reporting and notification of disasters under Article 19 of the Disaster Safety Act, is to be that the Act on Disaster and Safety is the basic law that can be applied in principle to disaster and safety management. Therefore, the Disaster Safety Act may be applied as the Framework Act, except as otherwise provided in the Radioactive Disaster Prevention Act or the Nuclear Safety Act.

Although the Nuclear Safety and Security Commission, which is a central administrative agency with professional knowledge and comprehensive authority to prevent and cope with nuclear safety and radioactive disasters, has a duty to report to the agencies that received the report so that the occurrence of all radioactive accidents can be grasped, it cannot be deemed that the Nuclear Safety and Security Commission has a direct duty to take measures against all radioactive accidents. However, it is possible to directly review and determine the necessity of emergency measures, as prescribed by statutes.

In the event of a disaster, the responsibility for response and recovery is against the disaster management agency that stipulates that the disaster management is responsible for performing the disaster management affairs in the safety management plan formulated at the level of the disaster management agency, except as otherwise expressly provided for in the Act on Disaster and Safety. Accordingly, the disaster management expenses should be borne by the relevant disaster management agency in principle.

Except where the management agency of an important facility subject to disaster management separately determines as a disaster management agency, the relevant local government that maintains and manages the public facility within the jurisdiction of the local government shall become a disaster management agency. If a local government finds a material suspected of radioactive substance or a radioactive substance, the purport that the local government is included in the agency subject to reporting may also be deemed to be

1. Case history

(a) Reporting on the occurrence of radioactive contamination and implementation of works for removing radioactive substances;

(1) On November 1, 201, Seoul Nowon-gu, Seoul Nowon-gu, reported that the radiation level level was measured on the roads (including roads where the level of radioactive contamination was additionally discovered). As a result of the measurement of the Nowon-gu fire station’s measurement, the radiation contamination level that reaches ten times the average amount of radioactive radiation on the roads of this case was discovered.

(2) On November 2, 2011, the Nuclear Safety and Security Commission announced on November 3, 201, that the Nuclear Safety and Security Commission had the Institute of Nuclear Safety conduct a detailed investigation into the instant road, and that the amount of radiation measured on the instant road would not interfere with the daily use of neighboring residents’ roads. However, on November 3, 2011, the Nuclear Safety and Security Commission announced a provisional investigation that the amount of radiation measured on the instant road would be presumed to include some radioactive substances in the ASSCON

(3) On November 3, 2011, the head of Nowon-gu, the road management agency of the instant road, announced that the container of the instant road will be removed within one-half (1-2) days to address the anxiety of nearby residents, and actually removed the container from November 4, 201 to the 11th (1) of the same month.

(4) On November 8, 2011, the Nuclear Safety and Security Commission announced the following detailed results.

① 이 사건 도로의 지표 1m 높이에서 측정한 방사선량은 1.4μ㏜/h(시간당 마이크로 시버트: 방사성물질에서 나오는 방사선이 인체에 영향을 미치는 정도를 측정하는 단위이다) 이하이고, 지역 주민이 이 사건 도로에서 매일 하루 1시간씩 1년간 서 있어도 연간 노출되는 방사선량은 0.51~0.69m㏜로서, 원자력안전법 시행령에서 정한 일반인의 연간 허용선량 1m㏜ 미만으로 안전에는 문제가 없다.

② Css-137 is Pium (Cs-137) for the radioactive isotope mixed with the container of the instant road, and the concentration of radioactive materials contained in the Ascon is 1.82 to 35.4Bq/g (becquerels per gram are international standard units indicating that radioactive collapse takes place several times). If the concentration of wastes contaminated by Psium (Cs-137) exceeds 10Bq/g, it constitutes “radioactive wastes” prohibited by self-disposition under the Nuclear Safety Act.

③ Considering the fact that the slag (slag) of steel companies at the time of manufacturing asphalts are used in metal scrap or non-metallic materials, metal acids, etc. at the time of melting tin in luminous channels, it is presumed that radioactive materials flown and melting radioactive materials in an inappropriate way, and that sludges contaminated by radioactive materials enter Amcon shall be presumed to enter into Amcon.

(5) On November 14, 201, the head of Nowon-gu requested the Nowon Police Station to investigate the company presumed to have supplied asphalts at the time of the construction of the road in this case. However, on December 22, 2011, the Nowon Police Station sent a reply to the effect that the investigation cannot be readily concluded as a provider of cause of mixture of radioactive substances, since the above company discontinued its business before ten years, and relevant documents were discarded.

(6) Upon receipt of a report on the measurement of the higher level of radioactivity on February 2, 2012 from another side road near the side road where the primary removal work was performed, the head of Nowon-gu removed the ice container on the side road between April 23, 2012 and the 24th day of the same month and then packages the new ice container (hereinafter “instant accident”).

(b) the result of meetings of the relevant agency and the implementation of screening work for removed asphalts;

(1) In order to determine the disposal method of wastes, such as asphalts removed from the road of this case (hereinafter “road wastes”), a conference was held four times between the Nuclear Safety and Security Commission and the Ministry of Knowledge Economy (as the Government Organization Act was wholly amended by Act No. 11690, Mar. 23, 2013; its name was changed to the Ministry of Trade, Industry and Energy), the Ministry of Education and Science, the Ministry of Land, Infrastructure and Transport, the Ministry of Public Administration and Security, the Seoul Special Metropolitan City, and the Plaintiff’s respective officials in charge.

(2) The participants at the third meeting of the related agency held on December 15, 2011 agreed on the following expenses incurred in the management of road wastes (hereinafter “instant agreement”).

(1) A local government shall transfer road wastes to the Korean Electric Technology Training Institute in Seoul Special Metropolitan City, Nowon-gu to start radioactive waste screening work, and shall bear the expenses incurred in transferring road wastes to the Korean Electric Technology Training Institute, and the expenses incurred in performing selective screening work.

(2) Expenses incurred in selection (expenses incurred before packing) shall be executed with the budget by a local government first.

(3) Expenses incurred in selection of ships (including expenses incurred in relocating and storing them as selection of ships, drums, and racing radioactive waste disposal sites) shall be basically borne by the central government and local governments, but the cost-bearing level shall be determined through subsequent consultation between related agencies by referring to the results of legal review,

(3) From March 24, 2012 to May 14, 2012 in accordance with the criteria for the selection and management of radioactive wastes presented by the Nuclear Safety and Security Commission, the head of Nowon-gu carried out the selection work by classifying as industrial wastes (hereinafter “instant selection work”). From March 24, 2012 to May 14, 2012, any road wastes mixed with three Piums (Css-137) with activity concentration of at least 10Bq/g (Cs-137) from the road wastes as radioactive wastes, and any wastes mixed with three Psiums (Cs-137) below 10Bq/g as radioactive wastes. The volume of the road wastes, such as asphalt containers removed twice on the two roads of this case, is 785t in total, and approximately 457t of them are not allowed to self-disposition, and the remaining approximately 328t of them are classified as general wastes that can be disposed.

(4) In relation to the instant radioactive contamination accident, the Plaintiff spent a total of KRW 954,80,000 (= KRW 467,651,90 for the removal and packing of asphalt containers + KRW 482,348,010 for the instant selective work + the resident monitoring team’s expense + KRW 4,800 for the instant selective work. On December 23, 2011, the Plaintiff paid KRW 700,000 out of KRW 40,000 for the special adjustment grants under Article 29-3 of the Local Finance Act, and used KRW 300,000 for the instant selective work costs.

(5) The Defendant shared the cost of packing the radioactive wastes, which the head of Nowon-gu finished the selection work, into the drum and container, and the cost of transporting racing radioactive waste as the disposal site.

2. The plaintiff's summary of the claim and the judgment of the court below

A. Summary of the Plaintiff’s claim

The Plaintiff claimed against the Defendant for the payment of the total of KRW 482,348,010 incurred in the instant selection work (i.e., the instant selection work cost of KRW 482,348,010 + the cost of residents monitoring group of KRW 4,80,000). The Plaintiff asserted that the Defendant had a duty to bear the said cost as a contract deposit under the instant agreement, and that the Defendant had a duty to reimburse the said cost, even if there is no agreement on the cost sharing, the instant selection work constitutes “radioactive waste management” under the Radioactive Waste Management Act (hereinafter “radioactive Waste Management Act”) and should be disbursed from the “radioactive Waste Management Fund,” which is managed and operated by the Minister of Trade, Industry and Energy under the jurisdiction of the Defendant. However, since the Plaintiff’s performance of the Defendant’s work on behalf of the Defendant without legal or contractual obligation, the Plaintiff asserted that the Defendant has a duty to reimburse the cost under Article 739 of the

B. The judgment of the court below

The lower court determined that the Defendant was obligated to pay the Plaintiff the agreed amount pursuant to the instant agreement, on the grounds that the Defendant agreed to share the cost of the instant radioactive waste selection work with the Plaintiff. Then, the instant selection work constitutes “radioactive waste management” under the Radioactive Waste Management Act, and thus, it is reasonable to disburse it from the “radioactive waste management fund” managed and operated by the Minister of Trade, Industry and Energy, but considering the following circumstances: (a) the head of Nowon-gu did not comply with the prior removal recommendation from the Nuclear Safety Technology Institute; (b) the volume of road waste is increased due to the removal of all containers of the instant road; and (c) the instant selection work cost increased accordingly, the lower court determined that it is reasonable for the Defendant to bear 30% of the cost of the instant selection work paid by the Plaintiff; and

3. Judgment of the Supreme Court

A. Whether the instant selection work constitutes “radioactive waste management”

(1) The outline of the provisions of the radioactive waste legislation related to the management of radioactive wastes is as follows.

(1) A person who generates radioactive wastes under Article 70(2) of the Nuclear Safety Act is not allowed to dispose of the radioactive wastes themselves, and shall be managed in the “radioactive waste management facilities” constructed and operated by a “radioactive waste management agency” with permission from the Nuclear Safety and Security Commission pursuant to Article 63(1) of the Nuclear Safety Act (Article 2 subparag. 2 and Article 13(1)).

(2) The term "management" of radioactive waste means the transportation, storage, treatment, and disposal of radioactive waste by a radioactive waste management agency which is not allowed to self-management from the radioactive waste producer (Article 2 subparagraph 2, and Article 13 (1)).

(3) The generator of radioactive wastes shall transport the radioactive wastes classified and packaged by the method prescribed by Presidential Decree and then deliver them to the radioactive waste management agency (Article 13 (1) and Article 4 (4) of the Enforcement Decree of the same Act).

(4) The radioactive waste generator shall deliver the radioactive waste to the radioactive waste management agency as well as pay the cost of radioactive waste management, and the radioactive waste management agency shall transfer the cost of radioactive waste management to the radioactive waste management fund (Article 14(1) and (2)). The cost of management paid by the radioactive waste generator is one of the main resources of the radioactive waste management fund (Article 29 subparagraph 1). The radioactive waste management agency shall be operated as the radioactive waste management fund (Article 30(1)

(2) As can be seen, the radioactive waste law merely regulates the ordinary and fundamental situation in which the radioactive waste producer manages the radioactive waste management facility by classifying, packing, and transporting the radioactive waste with concentration in which the self-management is not allowed. On the other hand, in cases where the radioactive waste producer is discovered, the collection, classification, packing, and transport of the radioactive waste is not entirely stipulated. Considering the regulatory framework of the radioactive waste statute and the contents and structure of the Act on Measures for the Protection of Nuclear Facilities, etc. and Prevention of Radioactive Disasters (hereinafter “Disaster Safety Act”), and the Framework Act on the Management of Disasters and Safety (hereinafter “Disaster Safety Act”), the “management” under the radioactive waste Act can be deemed as a limited concept that regulates only the stage in which the radioactive waste management entity takes over the radioactive waste. The Management Fund also stipulates that the Management Fund should use the Management Fund within a limited meaning.

Therefore, in a case where a radioactive waste is discovered that is not known who is the radioactive waste generator, the collection, classification, packing, and transportation of such radioactive waste and the delivery of such radioactive waste to a radioactive waste management agency is difficult to be deemed to constitute “management” of radioactive waste under the radioactive waste management Act. Therefore, the cost

B. The structure and content of the relevant statutes applicable to the selection work of the instant case

(1) As a matter of principle, the discovery of any radioactive waste that is not identified as the radioactive waste generator may be governed by the radioactive disaster prevention act as the first type of “radioactive accident” and “social disaster” under the Disaster Safety Act.

(2) First, the summary of the provisions of the Radioactive Disaster Prevention Act relating to “radioactive accidents” is as follows.

(1) The purpose of the Radioactive Disaster Prevention Act is to prevent and regulate "radiation emergencies" (referring to situations in which urgent response is required as radioactive materials or radiation are leaked or are likely to leak in nuclear facilities) mainly generated in nuclear facilities and "radioactive disasters (referring to cases in which radiation emergencies are expanded and which are developed by disasters that require nationwide measures) (Article 1, Article 2 subparagraphs 7 and 8, Articles 17 and 23).

② Under Article 22 of the Radioactive Disaster Prevention Act, where anyone finds a fire, accident, or radioactive substance or a substance suspected of radioactive substance in a place other than a nuclear facility, such as a vehicle transporting radioactive substance, a ship, etc., he/she shall report it without delay to the Nuclear Safety and Security Commission, a local government, a fire-fighting government, a police agency, or a nearby military unit. The Radioactive Disaster Prevention Act does not separately define the concept of such “radioactive accident” and imposes a duty to report on a radioactive substance or a suspected substance, regardless of the degree of its contamination.

(3) The head of the institution, other than the Nuclear Safety and Security Commission, upon receipt of the above report, shall report it to the Nuclear Safety and Security Commission without delay, and when a report or notification is made, it shall be deemed that the report or notification under Article 19 of the Disaster Safety Act has been completed (

(4) If the Nuclear Safety and Security Commission deems it necessary to take emergency measures to protect people's lives and health or the environment from a radioactive accident or the spread or possibility of the spread of radioactive contamination, it may take measures necessary for removing sources of radioactive contamination and preventing the spread of radioactive contamination (Article 22-2 (1)).

(3) Next, the outlines of the provisions of the Disaster Safety Act and subordinate statutes related to “fire emitting” are as follows.

① The Disaster Safety Act defines “disaster” as the subject matter of the regulation under the same Act, and classify it as “natural disaster” and “social disaster” as “social accident” (Article 3 subparag. 1). Here, social disaster refers to “damage to human life or property requiring countermeasures at the level of the State or a local government” (Article 2 subparag. 1 of the Enforcement Decree of the same Act). The Disaster Safety Act does not separately define the concept of “natural radiation”, a kind of social disaster.

(2) The term "disaster management" means all activities conducted for the prevention, preparedness, response, and recovery of a disaster (Article 2 subparagraph 3). The agency responsible for performing disaster management affairs under the Disaster Safety Act is referred to as "disaster management agency", and the agency, etc. prescribed by Presidential Decree, such as central administrative agencies, local governments, local administrative agencies, public institutions, public organizations, and agencies in charge of managing important facilities subject to disaster management (Article 3 subparagraph 5). The head of a disaster management agency shall formulate and implement a safety management plan related to his/her duties and shall cooperate with the local government's disaster and safety management affairs (Article 4 (2)), and submit a safety management plan of the relevant agency to the head of the competent local government (Articles 24 (2) and 25 (2)).

(3) In relation to disaster and safety management affairs, the head of a Si/Gun/Gu shall prepare Si/Gun/Gu safety management plans by integrating the guidelines for formulating Si/Gun/Gu safety management plans and the safety management plans of disaster management agencies in his/her jurisdiction (Article 25 (3)).

(4) Except as otherwise expressly provided for in the Disaster Management Act or other Acts and subordinate statutes, expenses incurred in relation to a disaster management shall be borne by a person responsible for the implementation thereof, as prescribed by the Disaster Management Act or the safety management plan, and where a Mayor/Do Governor or the head of a Si/Gun/Gu implements an emergency measure for a disaster to be implemented by another disaster management agency, such expenses shall be borne by the disaster management agency responsible for the implementation of the

(5) Where anyone finds any sign of occurrence of a disaster or any sign of occurrence of a disaster, he/she shall immediately report such fact to the head of a Si/Gun/Gu, an emergency rescue agency, or other relevant administrative agencies, and the head of a Si/Gun/Gu and other relevant administrative agencies in receipt of such report shall notify the head of the competent emergency rescue and relief agency, and the head of an emergency rescue and relief agency shall notify the head of the Si/Gun/Gu having jurisdiction over such location and the head

(4) It is reasonable to view that the management of radioactive accidents and chemical and biological accidents and the cost sharing system under the above statutes are as follows.

① Article 8 of the Disaster Safety Act can be deemed as a provision that declares that the Disaster Safety Act is the Framework Act on Disaster and Safety Management. The legislative purport of Article 22(3) and (2) of the Radioactive Disaster Prevention Act stipulating that reporting and notification of a radioactive accident under Article 19 of the Disaster Safety Act shall be deemed to be a report and notification of a disaster under Article 19 of the Act on Disaster and Safety. Therefore, the Act on Disaster and Safety can be deemed as a verifying provision that the Framework Act on Disaster and Safety is a basic Act that can be applied in principle to disaster and safety management. Therefore, with respect to radioactive accidents and chemical radiation accidents, the Radioactive Disaster Safety Act may be applied as a Framework Act, except as otherwise expressly provided for in the Radioactive Disaster Prevention Act or the

② Although the Nuclear Safety and Security Commission, which is a central administrative agency with professional knowledge and comprehensive authority to prevent and cope with nuclear safety and radioactive disasters, imposes a duty to report to the agencies in receipt of the report so that the occurrence of all radioactive accidents can be grasped, the Nuclear Safety and Security Commission cannot be deemed to have a direct obligation to take measures against all radioactive accidents, the Nuclear Safety and Security Commission may directly review and determine the necessity of emergency measures, etc., as determined by statutes.

(3) Except as otherwise expressly provided for in the Disaster Safety Act, the liability for response and recovery in the event of a disaster shall be borne by the disaster management agency that prescribes that the disaster management duties are to be performed in the safety management plan formulated at the level of the State vehicle, related central administrative agency vehicle, City/Do vehicle, Si/Do vehicle, Si/Gun/Gu vehicle, Si/Gun/Gu vehicle, and disaster management agency, respectively, pursuant to the Disaster Safety Act. Accordingly, the

(4) Except where the management agency of an important facility subject to disaster management separately determines as a disaster management agency, the relevant local government that maintains and manages the public facilities within the jurisdiction of a local government shall become a disaster management agency. Where the management agency of an important facility subject to disaster management discovers radioactive materials or radioactive materials, the purport that the public facilities are included in the agency subject to reporting may

C. Examining the facts of the instant case in light of the relevant provisions and legal principles, the following determination is possible.

(1) Under the instant agreement, the central government and local governments share the cost of treating radioactive wastes from the road wastes of this case, but the level of sharing was subsequently decided through consultation between related agencies by referring to the outcome of legal review. However, the court did not reach an agreement on the level of sharing thereafter. As a result of legitimate interpretation of the relevant statutes, it is reasonable to determine the method or ratio of sharing the cost between the Plaintiff and the Defendant by comprehensively considering all the circumstances, such as the background of the instant accident, the details and scale of the actual cost incurred by the Plaintiff and the Defendant, as a result of legitimate interpretation of the relevant statutes. The Plaintiff should be deemed to be able to claim reimbursement to the Defendant only to the extent that it exceeds its portion

(2) In the case of the radioactive contamination accident of this case, since it is difficult for the manufacturer of the radioactive waste of this case to discover the radioactive waste generators as the manufacturer of the radioactive waste has already discontinued the road of this case, the measures taken by the administrative agencies, such as the head of Nowon-gu or the Nuclear Safety and Security Commission affiliated with the defendant, to collect, classify, pack, and transport the radioactive materials contained in the radioactive waste of this case, cannot be deemed as falling under

(3) Rather, as the head of Nowon-gu removed a container from the road of this case and performed the selection work, the volume of radioactive wastes for which self-disposition is not allowed reaches approximately 457t, it can be deemed as social disasters under the Disaster Safety Act, which fall under the “damage to human lives or property requiring countermeasures at the local government level” caused by the “biological radiation”. In addition, the instant radioactive contamination accident falls under the “radioactive accident” under Article 22 of the Radioactive Disaster Prevention Act. On this premise, the head of Nowon-gu removed a container on the road of this case and then conducted the work of selecting general wastes and radioactive wastes on the basis of the permissible level of self-disposal, and can be deemed as the action of response to and recovery from disasters under the Disaster Safety Act. Furthermore, since the instant road of this case is a local government maintained and managed by Nowon-gu, and thus, it cannot be deemed as the emergency action of the radioactive contamination management agency in view of the principle that the radioactive contamination management agency is responsible for responding to the disaster of this case.

(4) As a result of the above interpretation of the relevant statutes, it is difficult to find out more radioactive waste generators than others, and it is difficult to view that the Plaintiff or the Defendant is responsible for the occurrence of the instant accident, and the degree of damage to the instant accident or the amount of response and recovery expenses as the radioactive accident and the chemical and biological emission; and approximately KRW 62% (30,00,000 out of KRW 482,348,010) out of the cost of the instant selective selection work paid by the Plaintiff (the portion of the instant selective selection work costs of KRW 482,348,00,00) has already been subsidized by the Seoul Special Metropolitan City in the form of special adjustment grants, and the Defendant has already disbursed considerable expenses due to packing and transporting the radioactive waste that was completed the selective selection work. In full view of the above, it is unreasonable to deem that the Plaintiff is reasonable to bear the remainder selective selection work costs and that the Defendant also bears the burden.

In particular, the part of the instant selection work cost of KRW 300,00,000, which the Plaintiff had already received financial support from the Seoul Special Metropolitan City as a special adjustment subsidy, constitutes double transfer of expenses, and cannot be accepted. Furthermore, if the Defendant bears the entire costs of the instant selection work, such as the Plaintiff’s assertion of the grounds of incidental appeal, the Plaintiff’s burden out of the “the cost of the selection work from the selection work,” is no longer borne by the Plaintiff, and the said cost would result in a violation of the contents of the instant agreement agreed between the central government and the local government, and thus, cannot be accepted.

D. Nevertheless, the lower court determined otherwise, on the premise that the instant selection work carried out by the head of Nowon-gu constituted radioactive waste management under the radioactive waste Act, that the instant selection work cost should be disbursed from the radioactive waste management fund managed and operated by the Minister of Trade, Industry and Energy under the jurisdiction of the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the management of radioactive waste under the radioactive

4. Conclusion

In the end, the Defendant’s ground of appeal assigning this error is with merit, and the Defendant is obliged to bear all the costs of the selection work in the instant case, or on the premise of this, the Plaintiff’s ground of supplementary appeal purporting that considering the Plaintiff’s unfavorable circumstances in the allocation ratio decision in the first removal work is erroneous.

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part 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 Plaintiff’s incidental appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Seon-soo (Presiding Justice)