9. Landowners' Responsibility for Disposal of Neglected Wastes

[22-1(B) KCCR 184, 2007Hun-Ba53, May 27, 2010]

In this case, the Constitutional Court unanimously decided that the provisions of the Construction Waste Recycling Promotion Act and Wastes Control Act which empower the competent authority to order the landowner to appropriately dispose of neglected wastes in case the landowner has allowed another person to use his/her land do not contradict the Constitution.

Background of the Case

The part of Article 45 Section 1 of the Construction Waste Recycling Promotion Act (Enacted as Act No. 7043, Dec. 31, 2003; later revised by Act No. 9769 and effective from Jun. 10, 2010) which involves Article 44 Item 1 and the part of Article 45 Section Item 3 of the Wastes Control Act (revised by Act No. 5865, Feb. 8, 1999; later revised by Act No. 8371, Apr.11, 2007) which states "in cases where the landowner has allowed another person to use his/her own land (when the aforementioned provisions are combined, hereinafter the "instant provisions")" provide that the competent authority can order the landowner who had leased his/her land to another person to dispose of the neglected waste on his/her land.

OO Inc., which had leased the land at issue from the petitioners of this case to engage in construction waste disposal business, neglected waste on the site. The competent authority, Mayor of Hwaseong, issued an order to OO Inc. to take appropriate action to dispose of the neglected waste, but, as OO Inc. did not take any action, ordered the petitioners, who are the landowners, to duly dispose of the waste based on the instant provisions.

The petitioners filed a suit against the Mayor of Hwaseong seeking cancellation of the aforementioned order with the ordinary court, and, with the case pending, filed a motion to request for the constitutional review, arguing that the instant provisions infringed on their property

rights. When the motion was denied, along with their claim in the pending case, the petitioners filed this constitutional complaint.

Provisions at Issue

Construction Waste Recycling Promotion Act (Enacted as Act No. 7043, Dec. 31, 2003; later revised by Act No. 9769, Jun. 9, 2009)

Article 44 (Succession of Responsibility for Disposal of Neglected Waste)

Any person that falls under the following subparagraph shall be deemed to have assumed the responsibility of the person subject to performing measures pursuant to Article 41 (1) for the disposal of neglected waste:

1.A person who leases a permitted business site to a person who has obtained a construction waste disposal business license referred to in Article 21 (4)

Article 45 (Measure against Persons Who Succeed Responsibility for Disposal of Neglected Waste)

(1)Every Mayor/Do Governor shall, when a construction waste disposal business operator fails to fulfill an order for the disposal of neglected waste referred to in Article 43 (1), order a person who succeeded the responsibility for the disposal of neglected waste pursuant to Article 44 to dispose of the neglected waste concerned preferentially.

Former Wastes Control Act (Revised by Act No. 5865, Feb. 8, 1999; later revised by Act No. 8371, Apr. 11, 2007)

Article 45 (Order to Take Actions for Disposing of Wastes)

(1)If it is discovered that the method by which wastes have been collected, transported, stored, or disposed of by the following person does not conform to the standards under Article 12, the Minister of Environment, the Mayor/Do governor or the head of Si/Gun/Gu may order the person to change the method of collecting, transporting, keeping in storage, or disposing of such wastes or to take any other necessary actions within a given period of time:

3.The owner of the land in which such wastes have been dumped

or buried, in cases where the landowner him/herself has disposed of such wastes in his/her own land or has allowed another person to use his/her own land.

Summary of the Decision

The legislative purpose of the instant provision is to control the generation of wastes and adequately dispose of them, thereby promoting environmental protection and quality improvement in people's lives. The legitimate purpose is served in this context, and it is an effective means to achieve the said legislative purpose to extend the duty of waste disposal to owners of the land with neglected wastes as well as the primary polluter.

Pursuant to the instant provisions, the landowner assumes the responsibility to dispose of neglected wastes in certain cases, not always, where the landowner willfully leases the land or permitted land use to others and the tenant actually fails to fulfill his/her responsibility to manage the neglected waste. Even when the landowner him/herself shoulders the cost of disposal, he/she can claim repayment from the tenant who caused the generation of wastes. Therefore, the restriction on fundamental rights by the instant provisions is hardly an excessive measure given the social binding force inherent in property rights.

The State imposing certain responsibility on the landowner will make it difficult for him/her to sign lease agreements with tenants lacking waste disposal abilities and thus contribute to the protection of environment. At the same time, it is also necessary for the landowner him/herself to take care of the neglected waste on his/her land.

If the responsibility for neglected wastes is confined to the primary polluter (tenant) and if, otherwise, the State and local governments are held responsible, wastes can easily be neglected and their disposal may not be carried out in a timely manner. Eventually, this can result in an unreasonable consequence in which the public totally not

responsible for the neglect takes over the enormous cost of disposal. Above all things, the relevant provisions stipulate a performance guarantee system for neglected wastes and impose the duty of primary disposal of wastes on the waste disposal operator.

Finally, in view of the fact that the anticipated public interest of environmental protection far outweighs the disadvantage that landowners suffer due to the instant provisions, it is not to be considered that the instant provisions excessively violated the constitutional property rights by imposing the responsibility of neglected waste disposal on landowners who have leased their land to other persons.