[1] Where an urban development project implementer constructs a building in accordance with the size and use specified in a project plan on a parcel of land created by a project falling under “other than construction affecting public sewerage” under the former Sewerage Act, the implementer of the urban development project and the building owner bear the burden of borne by the burden under Article 61 of the former Sewerage Act

[2] Whether a land readjustment project is included in the "urban development project" under Article 35 (2) 2 (a) of the former Enforcement Decree of the Sewerage Act, which provides for the types of acts other than construction that affect the public sewerage system (affirmative)

[1] Article 61(1) of the former Sewerage Act (amended by Act No. 11084, Nov. 14, 201) provides for the owner of a building, etc. in Article 61(2) provides for a person who has engaged in acts other than other construction works or construction works affecting the public sewerage (hereinafter “other acts”), and there is no express provision that the aforementioned charges should be first borne by the owner of a development project and the owner of a building if a building is newly constructed on a site created by a project operator, such as an urban development project. However, the amount borne by the owner is understood as having the primary purpose of imposing the cost on the person who caused environmental pollution, which caused the new construction or extension of the public sewerage system, and the meaning of other acts stipulated in the above Act means the act of creating the public sewerage system itself, and in case of an urban development project, the actual cause of the expansion of the public sewerage system does not constitute an act of constructing a new building within the relevant project district and the amount borne by the owner of the building.

[2] Article 35(2) of the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 23783, May 14, 2012) provides that “urban development projects” shall be defined as “development projects, etc. under the National Land Planning and Utilization Act, the Housing Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Site Development Promotion Act, and the Urban Development Act,” with the type of acts other than those affecting the public sewerage system under the Sewerage Act (hereinafter “other acts”). It is clear that the language and text of the Act merely presents the relevant laws and regulations on urban development projects, and does not limit them. Moreover, the purpose of Article 35(2) of the former Enforcement Decree of the same Act is to enable other actors to bear all expenses incurred in treating sewage anticipated to occur from other acts. In full view of the contents, form, system, and purport of the relevant laws and regulations, it is reasonable to clearly view that the “urban development projects” under the above provisions are not included in the relevant urban development projects, but rather in the relevant laws and regulations.

[1] Article 61 of the former Sewerage Act (Amended by Act No. 11084, Nov. 14, 2011); Article 35(2) of the former Enforcement Decree of the Sewerage Act (Amended by Presidential Decree No. 23783, May 14, 2012) / [2] Article 35(2) of the former Enforcement Decree of the Sewerage Act (Amended by Presidential Decree No. 23783, May 14, 2012)

[2] Supreme Court Decision 2003Du6849 decided Sep. 24, 2004 (Gong2004Ha, 1748)

Plaintiff (Law Firm New Light, Attorneys Cho Yong-ho et al., Counsel for the plaintiff-appellant)

The head of Seo-gu Incheon Metropolitan City (Law Firm Mawa, Attorneys Cho Yong-pon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Nu27970 decided March 25, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 61 of the former Sewerage Act (amended by Act No. 11084, Nov. 14, 201; hereinafter “former Sewerage Act”) provides for the burden-bearing amount. Article 61 of the same Act provides that “Public sewerage management authorities may have the owners of buildings, etc. that may discharge sewage of at least the quantity prescribed by Presidential Decree into public sewerage bear all or part of the cost of rebuilding public sewerage.” Article 61(1) provides that “Public sewerage management authorities may have the owners of buildings, etc. that may discharge sewage of at least the quantity prescribed by Presidential Decree bear all or part of the cost of construction on public sewerage necessary due to other construction works or acts other than those that affect the public sewerage system prescribed by Presidential Decree (hereinafter “other acts”), and Article 61(2) of the Enforcement Decree of the Housing Act provides that “the construction works other than the construction works prescribed by Presidential Decree or the construction works may have the burden of all or part of the cost of construction on public sewerage or the construction works under the Housing Site Development Promotion Act (amended by Presidential Decree No. 2020289, Sep. 27, 2007, 2007, etc.). 203333).

Ultimately, the former Sewerage Act provides that the burden-bearing is imposed on the provider who caused the construction of the public sewerage or caused the construction of the public sewerage as a result, in addition to the construction for installation and management of the public sewerage itself. Article 61(1) provides that the burden-bearing is imposed on the owner of the building, etc., and Article 61(2) provides that the owner of the building, etc. is a person who performs other construction works or other acts, and it does not explicitly provide that the charge should be first borne by the operator of the development project and the owner of the building, if the building is

However, the purpose of imposing the burden on the person who caused the new construction and enlargement of the public sewerage is to impose the cost on the person who caused the environmental pollution, and the meaning of other acts stipulated in the above Act refers to the act of creating the public sewerage by itself. Therefore, in the case of an urban development project, the actual person who caused the expansion of the public sewerage shall not be deemed the owner of a building who purchased a building by selling the site within the relevant development project zone or the site within the project zone, unless there are special circumstances. Therefore, in the case of a building constructed by an urban development project operator on the land created by the project corresponding to the "other acts" under the Sewerage Act according to the size and purpose stipulated in the relevant project plan, the burden on the burden shall be borne by the project operator in principle, and the owner of the building, etc. shall not be separately liable

2. Meanwhile, in an administrative litigation, whether an administrative disposition is illegal should be determined on the basis of the relevant law and fact at the time when the administrative disposition was taken place (see, e.g., Supreme Court Decisions 92Nu19033, May 27, 1993; 2007Du1811, May 11, 2007). Furthermore, the principle of non-sufficiency in an Act and subordinate statute on charges is merely a meaning that the relevant law cannot be applied to the facts completed prior to the entry into force of the Act and subordinate statutes, and it does not restrict the application of the Act and subordinate statutes to the facts that occurred thereafter.

The burden-bearing amount under Article 61(2) of the former Sewerage Act imposes all or part of the construction cost of the public sewerage required due to other construction works or other acts on the implementer of the relevant other construction works or the implementer of the other acts. The construction cost of the public sewerage is imposed on the basis of the amount of sewage generated due to the relevant project. In light of the fact that the amount of sewage generated can be changed by the modification of the project plan until the completion of the relevant project, the burden-bearing amount can be imposed pursuant to the Acts and subordinate statutes enforced until the completion of the relevant project, and the statute at the time of the project implementation authorization does not serve as the basis for imposing the amount (see Supreme Court Decision 2005Du2612, Jul. 26, 2007).

In this case, as long as Article 32(2) of the former Sewerage Act (amended by Act No. 8014, Sep. 27, 2006) and Article 18(2)2(b) of the former Incheon Metropolitan City Ordinance on the Use of Sewerage (amended by Ordinance No. 3879, Jan. 2, 2006) have already been enforced before the completion of the instant project, at the time of the instant disposition, Article 61(2) of the former Sewerage Act and Article 35(2)2(a) of the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 23783, May 14, 2012), the illegality of the instant disposition should be determined based on Article 61(2) of the former Sewerage Act, which was enforced at the time of the instant disposition, and Article 35(2)2(a) of the former Enforcement Decree of the Sewerage Act.

3. In addition, statutory construction ought to be carried out in the direction of finding concrete feasibility within the extent that does not undermine legal stability. For this purpose, the statutory construction ought to be faithfully interpreted in light of the ordinary meaning of the language and text used in the relevant statutes. Furthermore, the systematic and logical interpretation method that takes into account the legislative intent and purpose, history of enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes ought to comply with the aforementioned request for statutory construction (see, e.g., Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 2011Du19239, Jul. 5, 2012).

As seen earlier, the enforcement decree of this case provides that “urban development projects” shall be defined as “development projects, etc. under the National Land Planning and Utilization Act, the Housing Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Housing Site Development Promotion Act, and the Urban Development Act, etc.” as the type of other acts prescribed by the Sewerage Act, and it is clear that the language and text alone only presents the relevant laws and regulations on urban development projects, but does not limit them. In addition, the purpose of the enforcement decree of this case is to have other actors bear all the expenses incurred in the construction of public sewerage required due to other acts for treating sewage anticipated to be incurred from the project corresponding to other acts, which is the project implementer, who is the other actors who created the cause (see, e.g., Supreme Court Decision 2003Du6849, Sept.

In full view of the contents, form, system, purport, etc. of the above-mentioned relevant statutes, “urban development project” under the provision of the Enforcement Decree of this case is not limited to the project based on the statutes explicitly stipulated in the pertinent provision, but it is reasonable to view that the development project accompanying the establishment, expansion, etc. of public sewerage by examining the relevant statutes specifically and individually, which form the basis of the project, includes it. In this regard, it is reasonable to view that the land readjustment project is included in the above urban development project in light of the nature of the project, etc., although it is not explicitly listed

4. Examining the reasoning of the first instance judgment as cited by the court below in light of the above legal principles, since the land readjustment project of this case implemented by the Incheon Metropolitan City Urban Development Headquarters is accompanied by the installation of sewerage due to its nature, it constitutes an urban development project stipulated in the provisions of this case. Therefore, it is justifiable to determine that the obligor of the amount borne by the borne by the borne person under Article 61(2) of the former Sewerage Act and Article 61 of the Enforcement Decree of this case is not the Plaintiff who is the Incheon Metropolitan City Urban Development Headquarters. There is no violation of the legal principles

5. 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 Kim Chang-suk (Presiding Justice)