2017 High Court 594 Violation of Soil Environment Conservation Act

A

Suspension (prosecutions) and misappropriations (public trial)

Law Firm B

Attorney C

November 22, 2017

Defendant shall be punished by a fine of KRW 5,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

A person responsible for purification who has been ordered to take measures to purify contaminated soil within a fixed period from the competent authority shall comply with the said order.

On October 17, 2015, the Defendant generated soil contamination by leaking oil containing TPH, beegye, i.e., sirens into soil, etc., by drilling pipelines for the development of groundwater from the land located in Jeonju-si, Jeonju-si.

Although the Defendant received a “order for Soil Purification” issued under the name of the head of the Jeonju-si to the effect that he/she would take measures to purify the said contaminated land within the prescribed period (from February 18, 2016 to February 17, 2017) at the F Office of the F Office of the said Seoul Special Metropolitan City, Inc., Ltd. located in Jeonju-gun E, 2016, the Defendant failed to comply with the order within the said period without justifiable grounds.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. The prosecutor's statement concerning G;

1. A H statement;

1. Accusation against the Soil Environment Conservation Act offender;

1. Application of Acts and subordinate statutes to investigation reports (Presentation of Materials by an accuser);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 29 subparag. 1 and 11(3) of the Soil Environment Conservation Act, selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Judgment on the assertion of the defendant and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Summary of the assertion

Although the Defendant received the order for the purification of contaminated soil under the name of the head of Busan Metropolitan City on February 22, 2016 (hereinafter referred to as the “instant order for purification”), the instant order for purification is unlawful as follows, so it cannot be deemed that the Defendant failed to implement the instant order within the fixed period without justifiable grounds.

A. The Defendant was a person responsible for purification under the Soil Environment Conservation Act, who destroyed pipelines laid underground under the instant land and caused soil contamination. However, the Defendant, at the time, set a place where pipelines were installed under consultation with the landowner and the person who was aware of the existence of oil pipelines. As such, the Defendant is also a person causing soil contamination, and the Defendant and the same order of purification under Article 10-4(1) of the Soil Environment Conservation Act and Article 5-3 of the Enforcement Decree of the same Act. However, the Defendant did not issue the instant purification order only for the Defendant, and did not issue the purification order for the said land. In so doing, the Defendant erred by violating the statutes.

B. Article 10-4(5) of the Soil Environment Conservation Act provides for government subsidies for purification expenses, and Article 5-3(2)3 of the Enforcement Decree of the same Act provides that a lower-ranking purification manager shall issue a purification order where the cost of purification exceeds 590 million won for the purification of the instant land, and the Defendant cannot carry out the purification order with its own financial resources. Thus, it is reasonable for the head of the Busan Metropolitan Government to issue a purification order with the lower-ranking person, a person responsible for purification, without guiding the Defendant, who does not have any other financial resources, to receive subsidies from the National Treasury. However, as the head of the Busan Metropolitan Government issued the purification order in this case, the instant purification order is unlawful.

2. Relevant statutes;

(1) In cases where any soil contamination has occurred due to a natural disaster, war, or force majeure, the person who has caused such soil contamination shall compensate for the damage and take measures, such as purifying the contaminated soil: Provided, That the same shall not apply to cases where the soil contamination has occurred due to a natural disaster, war, or force majeure.

Article 10-4 (Responsibility, etc. for Purification of Contaminated Soil) (1) Any of the following persons, as a person responsible for purification, shall carry out a detailed soil survey, purification of contaminated soil, or improvement of contaminated soil (hereafter referred to as "soil purification, etc." in this Article) pursuant to Article 11 (3), 14 (1), 15 (1) and (3), or 19 (1) as a person responsible for purification:

1. A person who causes soil contamination by discharging, leaking, dumping, neglecting soil contaminants, or committing any other act;

2. The owner, occupant or operator of facilities subject to the control of soil contamination, which caused soil contamination at the time soil contamination occurs;

3. Any person who has comprehensively succeeded to the rights and obligations of persons falling under subparagraphs 1 and 2 due to a merger, inheritance or other reasons;

4. Any person who previously owned or currently owns or occupies land on which soil contamination has occurred.

(2) The omission.

(3) Where at least two persons responsible for purification, who may order soil purification, etc. pursuant to Article 11 (3), 14 (1), 15 (1) and (3) or 19 (1), a Mayor/Do Governor or the head of a Si/Gun/Gu shall order soil purification, etc. in consideration of the degree of responsibility of each person responsible for purification for the relevant soil contamination, the possibility of prompt and smooth soil purification, etc., as prescribed by Presidential Decree, and where necessary, he/she may seek advice from the Soil Purification Advisory Committee referred to in Article 10-9.

(4) omitted.

(5) In any of the following cases, the State may subsidize all or part of the expenses incurred in conducting soil purification, etc. pursuant to Article 11 (3), 14 (1), 15 (1) and (3), or 19 (1) (excluding the expenses repaid through the exercise of the right to indemnity under Article 10-4 (4) and the amount equivalent to an increase in the value of the relevant land due to soil purification, etc.; hereinafter the same shall apply), as prescribed by Presidential Decree:

1. Where the expenses required by a person responsible for soil purification under paragraph (1) 1, 2 or 3 to perform soil purification, etc. significantly exceed his/her share of expenses or the profits he/she has gained or is expected to gain by owning, occupying or operating the relevant facilities subject to the control of soil contamination;

2. Where the expenses required by a person, who acquired the relevant land before December 31, 2001 or no longer owns it due to transfer or other reasons, to perform soil purification, etc. as a person responsible for purification under paragraph (1) 4 exceeds the value of the relevant land;

3. Where the expenses required by a person who acquired the relevant land after January 1, 2002 to perform soil purification, etc. as a person responsible for purification under paragraph (1) 4 significantly exceeds the value of the relevant land and the profits he/she has gained or is expected to gain by owning or occupying such land;

(1) In accordance with Article 10-4 (3) of the Act, the Mayor/Do Governor or the head of a Si/Gun/Gu shall, where at least two persons are responsible for purification (hereinafter referred to as "person responsible for purification") under Article 11 (3), 14 (1), 15 (1) and (3), or 19 (1) of the Act in accordance with the following order, order them to conduct intensive soil surveys, to purify contaminated soil, or to implement projects for improving contaminated soil (hereinafter referred to as "soil purification, etc.") under Article 10-4 (1) of the Act:

1. A person responsible for purification under Article 10-4 (1) 1 of the Act and a person who comprehensively succeeds to rights and obligations thereof;

2. An occupant or an operator of facilities subject to the control of soil contamination, among persons responsible for purification under Article 10-4 (1) 2, and a person who comprehensively succeeds to the rights and obligations of such occupant or operator;

3. The owner of facilities subject to the control of soil contamination and a person who comprehensively succeeds to the rights and obligations of such owner among persons responsible for purification under Article 10-4 (1) 2;

4. A person currently owning or occupying a parcel of land where soil contamination has occurred, among persons responsible for purification under Article 10-4 (1) 4 of the Act;

5. A person who owns land where soil contamination has occurred, among persons responsible for purification referred to in Article 10-4 (1) 4 of the Act;

(2) Notwithstanding paragraph (1), in any of the following cases, a Mayor/Do Governor or the head of a Si/Gun/Gu may order soil purification, etc. before any person responsible for purification in any of the following cases among persons responsible for purification in a subordinate order referred to in the subparagraphs of paragraph (1):

1-2 (Omission)

3. Where it is deemed impossible to conduct soil purification, etc. because the expenses to be borne by a person responsible for senior purification significantly exceed the property value owned by him/her;

3. Determination

A. In light of the following, Article 10-3 of the Soil Environment Conservation Act imposes unlimited and actual responsibility on the person who has caused soil contamination. Article 10-4(1) of the same Act provides that the person who has caused soil contamination as the first person responsible for purification; Article 5-3(1) of the Enforcement Decree of the Soil Environment Conservation Act provides that, where there are two or more persons responsible for purification, the purification order should be issued in the order of the person who has caused soil contamination, the possessor of the facilities subject to contamination control and the owner of the land where soil contamination has occurred, the owner of the land where the soil contamination has occurred, and the former owner of the above land. The purification order of this case against the defendant of the head of YI would be based on Article 11(3) of the Land Environment Conservation Act; at that time, the defendant was in the position of the first person responsible for soil contamination under Article 10-

B. Furthermore, as seen earlier, the Enforcement Decree of the Soil Environment Conservation Act provides that "a purification order shall be issued in the order of a contaminated person, possessor of the facility subject to soil contamination, owner of the land where soil contamination occurred, and a person who was an owner of the above land," and Article 5-3 (2) 3 of the Enforcement Decree of the same Act provides that "where the purification cost to be borne by a person responsible for purification in prior order is deemed impossible to conduct soil purification, etc. because his/her property value substantially exceeds the property value he/she owns, he/she may issue a purification order before the person responsible for purification in prior order." Article 10-4 (5) of the Soil Environment Conservation Act provides that "the State may subsidize all or part of the expenses incurred in purifying the soil in a case that falls under certain requirements, the Enforcement Decree of the Soil Environment Conservation Act provides that it shall be at the discretion of the State, and it does not provide for the guidance procedure on the purification order in this case. In addition, even though the defendant may file a lawsuit against the order in this case, it cannot be seen that the purification order in this case is improper.

In light of the degree of soil contamination on the land of this case for the reason of sentencing, the case is not easy, the purification work is being conducted by dopco, which is currently subordinate officer, the defendant has no record of criminal punishment in addition to the punishment of a fine once due to this type of crime, and the defendant's age, character, conduct and environment, etc., the punishment shall be determined as ordered by taking into account all the sentencing conditions shown in the argument of this case, such as the age

Judges Choi Su-jin