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(영문) 부산고등법원(창원) 2019.10.23 2018누11442
영업소폐쇄처분취소
Text

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Details of the disposition;

A. The Plaintiff is a company that manufactures and sells heavy equipment parts at the window B of Changwon-si located within the area where the installation of wastewater discharge facilities is restricted under Article 33(6) of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 14532, Jan. 17, 2017; hereinafter “Water Quality and Ecosystem Conservation Act”).

The Plaintiff installed 9 parts of CNC Line and 18 parts of CT Line (hereinafter “instant facilities”) at the location of the instant facilities, and operated the instant facilities using water-savinged water so that wastewater can be discharged.

B. On March 23, 2016, the Changwon District Prosecutors’ Office confirmed that the Plaintiff installed and operated the instant facilities, which are wastewater discharge facilities, without obtaining permission in the area where the installation of wastewater discharge facilities is restricted, as a result of the joint control of the Plaintiff’s workplace, and notified the Defendant on May 30, 2016 on the same day on the grounds that the Plaintiff violated the Water Quality Ecosystem Act, as stated in the attached facts in the attached Form 1.

[Case of Violation of the Water Quality and Ecosystem Conservation Act against the Plaintiff was found guilty in the first instance court (the Changwon District Court 2016Da14777) and the appellate court (the Changwon District Court 2017No1431) and sentenced to a fine of KRW 2 million. The Plaintiff’s appeal (the Supreme Court 2018Do110) was dismissed, and the judgment of the said appellate court became final and conclusive as it is).

On July 27, 2016, the Defendant issued an order to close down the instant facilities without permission (hereinafter “instant disposition”) by violating Article 33(1) and (5) of the Water Quality and Ecosystem Act on July 29, 2016, on the ground that the applicable provisions of Acts were violated. D.

On May 16, 2018, the first instance court has Articles 42 and 44 of the Water Quality Ecosystem Act that allows the Defendant to issue an order of closure under the Water Quality and Ecosystem Act at the fifth date for pleading, while the instant disposition is clearly made to what of the two provisions.

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