[2] The method of calculating discharge dues for a business operator who has completed an improvement order following the discharge of pollutants exceeding permissible limits

[3] In a case where a business operator who discharges air pollutants exceeding the statutory permissible emission levels imposed emission dues by using the emission period after the improvement order for correction from the date of collecting pollutants to the date of reporting the performance of the improvement order, the case holding that the above disposition of imposing emission dues based on the completion period of the emission period under the former Enforcement Decree of the Clean

[2] In light of the legislative purport of the former Clean Air Conservation Act (wholly amended by Act No. 8404 of Apr. 27, 2007) and the legislative purport of the Act and the characteristics of the calculation of the excess pollutant emission quantity and the dues, the calculation of the emission dues for a business operator who has completed the implementation after receiving an improvement order following the discharge of pollutants exceeding the permissible emission level shall be calculated by multiplying the initially measured emission quantity by the emission quantity by the emission period under the above Enforcement Decree, unless the business operator takes necessary procedures for the adjustment under Article 28(1) of the former Enforcement Decree of the Clean Air Conservation Act (wholly amended by Presidential Decree No. 20383 of Nov. 15, 2007). Thus, the imposition disposition of the emission dues calculated as above violates the provisions of Article 19(2) of the former Clean Air Conservation Act.

[3] In a case where a business operator who discharges air pollutants exceeding the statutory permissible emission levels imposed emission dues by using the emission period after the improvement order to collect pollutants from the date of collection of pollutants to the date of report on performance of the improvement order, the case holding that the disposition of imposing emission dues based on the completion date of the emission period under Article 18 (1) 2 of the former Enforcement Decree of the Clean Air Conservation Act (wholly amended by Presidential Decree No. 20383, Nov. 15, 2007) is lawful, not on the date of completion of the improvement work, since the business operator did not complete the improvement work before the scheduled date of performance of the improvement order

According to Articles 16, 19(1) and (2) of the former Clean Air Conservation Act (wholly amended by Act No. 8404, Apr. 27, 2007; hereinafter “Act”), emission charges which are imposed after an improvement order to correct air pollutants are calculated on the basis of the type, emission period, emission quantity, etc. of pollutants. Under the delegation of the above Act, emission charges are calculated on the basis of the type, emission period, emission quantity, etc. of pollutants. The emission charges which are imposed after an improvement order is issued to the business operator who discharges air pollutants in excess of statutory permissible emission levels. The Minister of Environment shall report the improvement order to the business operator on the improvement order or the date of completion of the improvement order by the date of expiration of the emission period exceeding the permissible emission period by November 15, 2007 (wholly amended by Presidential Decree No. 20383, Nov. 15, 2007; hereinafter “Enforcement Decree”) and the Minister of Environment shall report the improvement order or the date of completion of the order to improve the emission period without delay.

위 법령에 의한 배출부과금 산정의 기준이 되는 배출허용기준 초과 배출량은 사업자가 조업에 제공하기 위하여 실제로 가동하는 배출시설로 인하여 배출되는 오염물질의 양을 위 법령에 정한 방법을 토대로 산정하는 것이므로 법령에 특별한 규정이 없는 한 행정청은 가능한 한 객관적 사실관계에 입각하여 이를 산정하여야 할 것이지만 ( 대법원 1994. 5. 10. 선고 93누23763 판결 , 대법원 1996. 12. 23. 선고 95누14312 판결 등 참조), 사업장에서의 일정 기간에 걸친 오염물질의 실제 배출량은 그 시기(시기)와 종기(종기)는 물론 그 기간 중에도 늘 같을 수는 없는 관계로 정확한 배출량의 측정 및 그에 따른 배출부과금의 산정은 현실적으로 불가능한 반면, 그 위반행위의 적발이 어려우며 오염물질의 초과 배출로 말미암아 일단 훼손된 환경의 원상회복은 쉽지 아니함을 고려할 때 이와 같은 초과 배출량 및 배출부과금의 산정방법과 기준은 법령에서 정하는 일정한 기준에 따라 이루어질 수밖에 없다 할 것이고, 한편 그 산정방법과 기준은 전문적·과학적인 판단과 탄력적인 규율이 요구되는 영역이므로 하위 법령으로의 위임의 필요성이 인정된다 할 것인바, 이 점에 관한 위 시행령의 각 규정은 법 제19조 에서 부과대상, 기본배출부과금, 초과배출부과금의 부과요건을 모두 정한 다음 배출기간 등 그 세부적 사항을 대통령령에 위임한 데에 근거한 것이어서 사업자로서는 배출부과금의 산정방법 및 그 기준의 대강을 쉽게 예측할 수 있을 뿐만 아니라 시행령 제28조 에서 개선명령 이행완료예정일 이전의 조기 이행 등에 따른 배출부과금의 조정절차까지 마련하여 사업자가 불측·부당한 손해를 입지 않을 수 있도록 배려하고 있음에 비추어 포괄위임입법 금지원칙에 위반된다고 볼 수도 없다.

The calculation of emission dues for a business operator who has completed the implementation of an improvement order following the discharge of pollutants exceeding the permissible emission level, in light of the purport of the above Act and the characteristics of the calculation of emission dues, shall calculate emission dues by multiplying the initially measured emission quantity by the emission period under the above Enforcement Decree, unless the business operator takes necessary procedures on the ground of the occurrence of the adjustment cause under Article 28(1) of the Enforcement Decree. Thus, it cannot be said that the imposition of emission dues calculated as such violates the provisions of Article 19(2) of the Act (see, e.g., Supreme Court Decisions 92Nu2998, Dec. 22, 1992; 92Nu9395, Mar. 9, 193; 93Nu814, Jul. 16, 1993).

According to the reasoning of the judgment below, the Plaintiff’s 20th anniversary of the above 7th anniversary of the completion date of construction work, and the Plaintiff’s 20th anniversary of the above 7th anniversary of the completion date of construction work, based on the following facts: (a) the Plaintiff’s 20th anniversary of the above 7th anniversary of the date of construction work; and (b) the Plaintiff’s 7th anniversary of the improvement order, based on the premise that the 3th anniversary of the above 7th anniversary of the date of construction work; (c) the 20th anniversary of the above 7th anniversary of the date of construction work; and (d) the Plaintiff’s 7th anniversary of the date of construction work, the 20th improvement order, based on the premise that the 3th anniversary of the above 7th improvement order was based on the 5th improvement order, and the Plaintiff’s 3th anniversary of the completion date of construction work; and (e) the Plaintiff’s 3th anniversary of the above improvement order based on the 17th improvement order.7th day of the above.

However, according to the above legal principles and the provisions of the relevant laws and regulations, even though it is possible to adjust emission dues by the reduction of emission dues for early implementation prior to the scheduled date of the implementation of the improvement order in this case pursuant to the procedures set forth in Article 28(1) and (2) of the Enforcement Decree, unless the plaintiff takes such procedures prior to the scheduled date of implementation of the improvement order in this case, the disposal of this case by imposing emission dues on the basis of the closing date of the emission period cannot be deemed unlawful. The special circumstances cited by the court below as special circumstances that should be viewed differently from the closing date of the emission period in this case can only be confirmed based on a specific fact-finding procedure under the premise of credibility of the materials submitted by the business operator, or the implementation of the improvement order in the above Acts and subordinate statutes can be deemed to have been completed upon the completion of the implementation of the official improvement order by the administrative agency after examining and supplementing other causes such as the physical repair work of the pollutants itself, and the implementation of the improvement order in this case can not be seen as having been completed.

Nevertheless, the judgment of the court below ordering the revocation of part of the disposition imposing the discharge dues of this case on the grounds that the calculation of the discharge period and excess discharge amount under the provisions of the statutes was unlawful on the grounds that some of the incidental circumstances as above are in violation of the law, is erroneous in the misapprehension of legal principles as to the calculation of discharge

The defendant's ground of appeal pointing this out is with merit, and the plaintiff's ground of appeal is without merit.

On the other hand, the selection of evidence and the fact-finding belong to the exclusive authority of the fact-finding court unless there are special circumstances such as violation of the principle of free evaluation of evidence, and the plaintiff's ground of appeal to the effect that the court below's fact-finding as to the calculation of operating hours and excess density of the emission dues of this case is erroneous, such as incomplete hearing

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Yang Chang-soo (Presiding Justice)