Plaintiff (Law Firm Kangsan, Attorneys Gyeong-kin et al., Counsel for the plaintiff-appellant)

Suwon Market (Law Firm Dasan, Attorney Don-ju, Counsel for defendant-appellant)

January 12, 2007

Suwon District Court Decision 2005Guhap3401 Delivered on May 3, 2006

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

In the first place, the imposition disposition of KRW 14,932,620 imposed on the Plaintiff on May 13, 2004 by the Defendant is revoked. In the second place, the imposition disposition of KRW 14,932,620 imposed on the Plaintiff on May 13, 2004 by the Defendant is invalid.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Scope of the judgment of this court;

In the lawsuit of this case where the plaintiff primarily sought revocation of the disposition of imposing the amount borne by the burden of sewage on May 13, 2004 against the defendant, and the conjunctively sought invalidation of the disposition of imposing the amount borne by the burden of sewage on May 13, 2004, the first instance court rejected the plaintiff's primary claim and rendered a judgment accepting the conjunctive claim, and only the defendant appealed, the part where the plaintiff sought invalidation of the disposition of imposing the amount borne by the burden of sewage on May 13, 2004 is the subject of the judgment of this court.

2. Details of the disposition;

A. On May 16, 1998, the Plaintiff purchased, from the Korea Land Corporation on May 16, 1998, the land of this case, the Dong-dong (number and size omitted) of 203.9 square meters (hereinafter “instant land”). On June 21, 2003, the Plaintiff newly constructed the instant building by obtaining a construction permit from the Defendant on the instant land on the building area of 137.40 square meters on the instant land, and on the 6th floor area of 674.79 square meters on the ground (hereinafter “instant building”).

B. At the time of the above construction permit, the Defendant added the condition of “A building that does not install sewage treatment facilities within the sewage terminal treatment zone shall pay the amount borne by the sewage facilities before the completion of the construction permit and I shall remove the copy of the payment receipt at the time of the application for approval for use.” Upon the Plaintiff’s application for approval for use of the building of this case, the Defendant issued a payment notice to the Plaintiff on May 13, 2004 to pay KRW 14,932,620 to the Plaintiff (hereinafter “instant disposition”).

【Reason for Recognition】 Each entry of evidence Nos. 1 through 5, and the purport of the whole pleadings

3. Judgment on the conjunctive claim

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance except in the following cases: (a) This part of the judgment of the court of first instance is cited in accordance with Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

【Revised Part】

D. Determination

(1) Article 32(2) of the former Sewerage Act (amended by Act No. 7460, Mar. 31, 2005; hereinafter “the Act”) provides that the expenses for the construction of the public sewerage required due to other acts shall be borne, in whole or in part, by the implementer of the other construction or the person who has committed the other acts. Article 17(2)2(b)(1) of the Ordinance on the Use of Sewage at Suwon City (hereinafter “Ordinance”) lists the expenses for the construction of the public sewerage required due to other acts as an urban development project under the Housing Development Promotion Act, the Urban Planning Act, the Housing Construction Promotion Act, etc., and stipulates that all the expenses for the construction of the public sewerage required due to other acts shall be borne by the implementer of the other construction or the person who has committed the other acts, and the volume expected to be caused by such other acts shall be calculated

However, the projects listed in the above Ordinance as the "other acts" are relatively large development projects that establish and implement a comprehensive plan for a group of land. In such development projects, an action plan shall be formulated to achieve the development purpose, and the project shall be implemented in accordance with the plan. The basic or shop design report on such projects shall include the amount of sewage likely to be generated or increased in consideration of various circumstances, such as the estimated resident population, mobility population, purpose of use of land, and site for each business type, etc., which are expected when the project is implemented. The expenses incurred by the project operator in bearing the amount borne by the burden shall be included in the total development cost, and the housing site created by the project, commercial land, etc.

(2) In light of the relevant laws and regulations and the nature of other acts, the purport of Article 32(2) of the Act and Article 17(2)2(b)(1) of the Ordinance is to require other actors to bear all the expenses incurred in the construction of the public sewerage required due to other acts. In the case of a large-scale development project that establishes and implements a comprehensive plan, with respect to the expenses incurred in the construction of the public sewerage necessary for treating sewage anticipated to be generated from the project, the project implementer, who is another person that created the cause for the project, is obligated to bear the expenses incurred in the construction of the public sewerage necessary for the disposal of sewage. As such, with regard to the cost incurred in the construction of the public sewerage anticipated to be generated from the project, the amount borne by the public sewerage under Article 32(4) of the Act and Article 17(2)4 of the Ordinance, separately, cannot be imposed on the portion that the project implementer bears the expenses incurred in the construction of the public sewerage project, including the use of land created by the project. This means the amount anticipated to be included within 20.

(3) According to the above facts, the Plaintiff purchased land created by the Korea Land Corporation from the Korea Land Corporation, which is the other actors as stipulated in Article 17 (2) 2 (b) (i) of the Ordinance, and newly constructed the instant building thereon. The Korea Land Corporation concluded not only the housing area within the housing area within the area of the Suwon Construction Notification but also the commercial area, school, public office buildings and public facilities, general medical facilities, parks, green areas, etc. where the site for the instant building is located, and all of the charges borne by the Defendant for the burden of sewerage burden under the instant agreement concluded based on the amount of daily planned sewage generated in other specific use areas, such as the commercial area, school, public office buildings and public facilities, general medical facilities, parks, and green areas, the grounds for imposing the burden of sewerage burden under Article 3

(4) Therefore, the instant disposition orders a person who is not responsible for the payment due to the extinguishment of the grounds for imposition of the amount borne by the sewerage burden, and thus, it is reasonable to invalidate the instant disposition as it is objectively apparent, as well as serious defects, and as long as the Defendant asserts the legality of the instant disposition, the benefit of confirmation exists.

4. Conclusion

If so, the plaintiff's conjunctive claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Cho Jong-ok (Presiding Judge)