1. Whether the provision on the basis of disposition is unconstitutional (Ground of appeal No. 1)

A. Details of the relevant statutes

Article 23(1) of the former Clean Air Conservation Act (amended by Act No. 1626, Jan. 15, 2019; hereinafter the same) provides that “Any person who intends to install emission facilities shall obtain permission from, or report to, an administrative agency, as prescribed by Presidential Decree, as prescribed by Presidential Decree.” According to delegation, Article 11(1)1 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 26705, Dec. 10, 2015; hereinafter the same) provides that “discharge facilities generating specified hazardous substances” (hereinafter the “Enforcement Decree of the Clean Air Conservation Act”).

Article 38 of the former Clean Air Conservation Act provides, “Administrative agencies shall order a person who installs or uses emission facilities without obtaining permission or filing a report to suspend the use of such emission facilities.” However, the proviso states, “Where it is deemed that even if the emission facilities are improved or preventive facilities are installed or improved, the degree of pollutants emitted from the emission facilities is unlikely to lower than the permissible emission levels under Article 16, or where the place of installation is prohibited from the installation of emission facilities under other Acts, the administrative agencies must order the closure of the emission facilities.”

Meanwhile, Article 76 (1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that matters concerning the restriction on the use, type, size, etc. of buildings and other facilities in a special-purpose area shall be prescribed by Presidential Decree, and Article 76 (1) of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 26705, Dec. 10, 2015; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”) provides that Article 71 (1) 19 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 26705, Dec. 10, 2015; hereinafter “Enforcement Decree of the National Land Planning and Utilization Act”) and subparagraph 1 (i) of subparagraph 1 of attached Table 20 of the Enforcement Decree of the Building Act among factories under subparagraph 17 of the same Article [Attachment 19] of the Enforcement Decree of the National Land Planning and Utilization Act and subparagraph 1 (i) of attached Table 1] of the Enforcement Decree of the National Land Planning Act

B. Whether the enforcement decree of the instant case is unconstitutional

According to Article 37(2) of the Enforcement Decree of the instant case, in order to install a specified hazardous substance emission facility, permission is required to obtain permission from an administrative agency. Since installation of a facility emitting specified hazardous air pollutants is prohibited in a planned control area, permission is prohibited. Thus, the freedom of occupation of a person who intends to install and operate a factory facility emitting specified hazardous air pollutants, and the property rights of a person who owns land or a building in a planned control area may be restricted. However, the instant Enforcement Decree provision cannot be deemed to violate the principle of excessive prohibition under Article 3

1) First, we examine the Enforcement Decree of the Clean Air Conservation Act.

The purpose of obtaining permission from an administrative agency for the installation of emission facilities of specified air pollutants is to ensure that all citizens can live in a healthy and pleasant environment by preventing danger and injury to public health or the environment due to air pollution and by managing and preserving the atmospheric environment in an appropriate and sustainable manner, and therefore, the legitimacy of the purpose is recognized, and the permission system for the installation of emission facilities is a means suitable for achieving the above purpose.

In addition, specified hazardous air pollutants are “materials deemed to require the control of air emission because they may directly or indirectly harm human health or the growth of animals and plants by long-term intake or exposure” (Article 2 subparag. 9 of the former Clean Air Conservation Act). Since the enforcement decree of the instant Clean Air Conservation Act only prescribes that the installation of specified hazardous air pollutants emission facilities should not be absolutely prohibited, it does not absolutely prohibit the installation of the specified hazardous air pollutants emission facilities, and thus, it satisfies the minimum level of damage because the degree of infringement is not large, and the restriction of the permission system does not exceed the above public interest, thereby satisfying the balance of legal interests.

2) Next, we examine the enforcement decree of the National Land Planning and Utilization Act.

With respect to the right to land property due to the sociality and public nature of the land, strong restrictions and obligations may be imposed compared to other property rights, and with respect to the matters concerning the use, development and preservation of the land, a broad legislative formation right is granted to the legislators (see Constitutional Court en banc Order 2016Hun-Ma18, Sept. 28, 2017).

In order to promote public welfare and to improve the quality of life for the people, it is necessary to establish and execute a plan for utilization, development and preservation of the national land (Article 1 of the National Land Planning Act). Thus, prohibiting installation of specified hazardous air pollutants emission facilities for the purpose of planned, systematic development and management of planned control areas that are anticipated to be integrated into an urban area or that require limited utilization and development taking into account the natural environment (Article 36(1)2(c) of the National Land Planning Act) is legitimate and appropriate.

In addition, the Enforcement Decree of the National Land Planning Act only prohibits installation of specified air pollutants in a planned control area, and does not prohibit all areas. A person who intends to install and operate a factory facility emitting specified hazardous air pollutants may obtain permission from an administrative agency in an area other than a planned control area. A planned control area does not extensively restrict the use of a building and the type of business, but limits only the use of a building or the conduct of business for a specific purpose, i.e., “discharge facilities of specified hazardous air pollutants.” As such, the site or building owner is subject to partial restriction of private utility within the scope of “discharge facilities of specified hazardous air pollutants” among functions of the land or building. In this regard, the Enforcement Decree of the National Land Planning Act satisfies the minimum degree of damage, and the degree of restriction due to the prohibition of installation of specified hazardous air pollutants in a planned control

An emission facility of specified hazardous air pollutants installed without permission in a planned control area is “where the installation is prohibited from installation of emission facilities in accordance with other Acts” and is subject to an order of closure pursuant to the proviso to Article 38 of the former Clean Air Conservation Act. However, the disadvantage is the result of an act of violating the obligation to install and operate an emission facility of specified hazardous air pollutants without permission in a place where the installation of an emission facility of specified hazardous air pollutants is prohibited, and it is not the result of infringement of legal interests directly arising

3) Under the Enforcement Decree of the Clean Air Conservation Act amended by Presidential Decree No. 26705, Dec. 10, 2015, the provisions of the Enforcement Decree of the Clean Air Conservation Act are amended to only the installation permission of emission facilities which are generated in excess of the standards prescribed by Ordinance of the Ministry of Environment. The provisions of the Enforcement Decree of the National Land Planning Act were amended to prohibit only the installation of facilities which are emitted in excess of the above standards in planned control areas. Accordingly, the implementation Decree of the National Land Planning Act was possible in planned control areas. However, the amendment of the Enforcement Decree seems to reasonably improve the regulations on the installation of emission facilities of specified air pollutants due to the development of technology, such as the possibility of embodying the standards for assessment of environmental impacts or the change of policies, and it is difficult to view that the Enforcement Decree enacted by itself recognized the unconstitutional

4) Meanwhile, Article 30 subparag. 19 of the former Ordinance on the Urban Planning of Gimpo City (amended by Ordinance No. 1241, Sept. 30, 2015) that provides the same contents as the Enforcement Decree of the National Land Planning and Utilization Act and Article 30 subparag. 12 subparag. 12(a) of the [Attachment Table 15] subparag. 9(a) of the attached Table 19] cannot be deemed as a violation of the principle of excessive prohibition on the same ground.

C. In the same purport, the lower court is justifiable to have determined that the provisions of the Enforcement Decree of this case and the provisions of the Ordinance of this case, which are the grounds for the instant disposition, do not go against the excessive prohibition principle. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err

2. Whether grounds for disposition are recognized (ground of appeal Nos. 2 and 3)

A. The lower court, based on its stated reasoning, determined that there were some aspects that it is difficult to trust the outcome of the inspection of the emission of specified hazardous substances in the instant facilities, but the grounds for the disposition that “the specified hazardous substances were emitted from the instant facilities even if they were emitted from mincing.” were proven.

B. The allegation in the grounds of appeal is not legitimate grounds of appeal as disputing the fact-finding of the lower court as to the existence of the grounds of disposition. Furthermore, even when examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the burden of proof of the grounds of disposition, or by exceeding the bounds of the principle of free evaluation of evidence in violation

3. Conclusion

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

Justices Kwon Soon-il (Presiding Justice)