2017Guhap163 Water Supply Obligations

○ ○

Attorney Lee Jae-tae, Counsel for the plaintiff-appellant

J. Jeju Special Self-Governing Province Governor

Lee Jong-hoon, Kim Sung-young, and Meritorious decoration of the litigation performer;

Attorney Na-soo et al.

March 14, 2018

April 4, 2018

1. All of the ancillary claims in the instant lawsuit shall be dismissed.

2. The plaintiff's primary claim is dismissed.

3. Litigation costs shall be borne by the Plaintiff.

【State Claim】

On May 24, 2016, the Defendant confirmed that the part exceeding KRW 386,363 out of the imposition disposition of KRW 78,380,100 against the Plaintiff is null and void.

【Preliminary Claim】

The Defendant’s disposition imposing KRW 78,380,100 on the Plaintiff on May 24, 2016, exceeding KRW 386,363,00, is revoked.

[2] Preliminary Claim

The Defendant’s disposition rejecting approval for water supply works rendered to the Plaintiff on July 27, 2017 is revoked.

1. Details of the disposition;

A. Case background

1) The Plaintiff is a person who resides in a house located in the ○○○○○○○ in Seopo-si, Seopo-si.

2) Since the Plaintiff’s housing site is not included in the planned water supply zone in accordance with the basic plan for waterworks installation and management as the Defendant’s waterworks business operator, drainage facilities necessary to supply tap water have not been installed. The Plaintiff has lived as rainwater or agricultural water.

B. The plaintiff's application for approval of the first and second water supply works and the defendant's measures

1) From around 2013, the Plaintiff continuously filed a civil petition demanding the Defendant to install water supply and drainage facilities on the Plaintiff’s housing unit, and filed an application for approval with the Defendant on July 29, 2015 pursuant to Article 9 of the Jeju Special Self-Governing Province Ordinance on Water Supply and Waterworks.

2) Accordingly, the Defendant calculated the water supply construction cost at KRW 92,791,60, and issued a disposition imposing the said amount as the water supply construction cost when approving the water supply construction work to the Plaintiff on September 15, 2015.

3) On May 16, 2016, the Plaintiff asserted that construction cost for water supply should be treated with the Defendant’s finance, and brought a civil petition demanding the Defendant to proceed with construction works for the Defendant’s non-use, and filed an application for approval for re-supply of water supply to the Defendant.

4) On May 24, 2016, the Defendant re-calculated the construction cost of KRW 78,200,100. On May 24, 2016, the Defendant issued a disposition imposing the said amount as water supply construction cost (hereinafter “instant disposition”).

C. The plaintiff's application for approval of the third water supply work and the defendant's measures

1) The Plaintiff asserts to the effect that the costs for installing drainage facilities are borne by the Defendant, without refusing to pay the cost for installing the water supply cost imposed as above, and that the Plaintiff calculated only the construction cost for water supply facilities except this, and notified the Plaintiff. On July 5, 2017, the Plaintiff applied for approval for water supply construction again to the Defendant.

2) On July 27, 2017, the Defendant confirmed the details of the water supply construction cost notified to the Plaintiff on July 27, 2017, and confirmed that only the construction cost for water supply facilities are included in the water supply facilities and the water supply facilities to be borne by the Defendant are not included in the water supply facilities. As such, the Plaintiff paid all the water supply construction cost, and the Plaintiff sent a written application for approval of water supply construction works submitted by the Plaintiff to ○○ Eup for the supply of water and taken measures to notify the Plaintiff of the water supply construction cost by sending it to the ○○ Eup (hereinafter referred to as

(d) Request for an administrative appeal and a ruling of rejection;

On the other hand, on August 19, 2016, the Plaintiff dissatisfied with the instant disposition and filed a petition for trial with the Central Administrative Appeals Commission, and the Central Administrative Appeals Commission rendered a dismissal ruling (hereinafter referred to as the “instant adjudication”) on January 3, 2017 on the ground that the said petition for trial did not meet the requirements for a request for a trial. [Grounds for recognition] The Plaintiff did not dispute, each of the entries and images of Gap Nos. 1 through 19 (number number number number number number number, number number number, number number, number of number; hereinafter the same shall apply), and the purport of the entire pleadings.

2. The plaintiff's assertion

(a) The primary claim

According to Article 70 of the Water Supply and Waterworks Installation Act, the costs of installing water supply facilities, other than water supply facilities, shall be borne by the waterworks business operator. The defendant notified the plaintiff to pay not only 386,363 won of the cost of construction of the water supply facilities to be borne by the plaintiff but also the cost of construction of the drainage facilities to be borne by the defendant. Of the disposition of this case, the part exceeding the construction cost of the above water supply facilities, in the disposition of this case, is not in violation of the above provision of the Act, but also in violation of the above provision of the Act, and it is null and void

(b) First preliminary claim.

Even if the defect is not significant and clear, the part which exceeds the construction cost of water supply facilities in the disposition of this case shall be revoked as long as the defect is in violation as above.

(c) 2 preliminary claims.

The defendant's response on July 27, 2017 issued a rejection disposition against the plaintiff's application for approval of water supply construction works, and this is also erroneous in the above-mentioned law, so it should be revoked.

It is as shown in the attached Table related statutes.

4. Judgment as to the main claim

The stable supply of high-quality tap water to the people is the responsibility of the State or the local government. In this regard, Article 70 of the Water Supply and Waterworks Installation Act provides that the expenses for the installation of the water supply facilities corresponding to the key facilities other than the individual water supply facilities shall be borne by the waterworks business operator in principle. Since such water supply facilities are limited to financial resources that can be installed and managed, the State or the local government cannot be obliged to bear the unlimited duty of care. Accordingly, Article 71 (1) of the Water Supply and Waterworks Installation Act provides that "the waterworks business operator may have the person who provides the original cost of the water supply facilities bear all or part of the expenses for the installation of the water supply facilities, and Article 71 (2) of the Water Supply and Waterworks Installation Act and Article 65 (6) of the Enforcement Decree of the Water Supply and Waterworks Installation Act provides that the expenses for the extension of the existing water supply facilities or the expenses for the new water supply facilities shall be borne by the person who bears the responsibility to bear such expenses."

According to the above facts and evidence, the plaintiff's housing is located outside the water supply zone in accordance with the basic plan for waterworks installation and management, and in order to supply the plaintiff's housing to the plaintiff's housing, construction of drainage facilities should be carried out in the section of the road with about 1355 meters from the boundary line of the plaintiff's housing site. The plaintiff's construction cost should be calculated at KRW 78,380,100, including the pipeline construction cost and quarterly construction cost, and the expenses for soil and sand excavation and restoration work, and notified the plaintiff to pay them. Considering that the plaintiff's housing site is located outside the water supply zone and about 10,000,000,000 farmers were formed in the form of a village outside the water supply zone in accordance with the basic plan for waterworks installation and management, it is reasonable to view that the plaintiff's construction cost is not included in the water supply facility installation cost of the above area, and it is not reasonable to consider that the plaintiff's construction cost of the above case is included in the water supply facility installation cost.

On a different premise, the prior plaintiff's assertion is without merit without further review. 5. Determination on the preliminary claim

A. Defendant’s defense prior to the merits

Of the instant lawsuits, the part concerning the first and second preliminary claims is unlawful as they are filed with the lapse of the filing period.

B. Determination

A revocation suit shall be instituted within 90 days from the date on which the disposition, etc. is known (main sentence of Article 20(1) of the Administrative Litigation Act): Provided, That the period at the time a request for administrative appeal is filed shall be calculated from the date on which the original copy of the written ruling is served (proviso of Article 20(1) of the Administrative Litigation Act). In cases where the previous lawsuit is withdrawn and a new lawsuit is changed to be instituted, compliance with the period for filing a lawsuit against a new lawsuit shall be determined by the time when the lawsuit is modified in its original rule (see Supreme Court Decision 2004Du7023, Nov. 25, 2004).

According to the facts found earlier and the purport of the entire pleadings, the Plaintiff appears to have been served with the original copy of the instant written ruling, which is difficult to be served on January 3, 2017. Meanwhile, the Plaintiff appears to have become aware on July 27, 2017, at least before September 15, 2017. The Plaintiff filed a lawsuit with this court to the effect that “the first Defendant will perform the duty to supply tap water.” However, the Plaintiff filed a lawsuit with the court to the effect that “the Defendant will perform the duty to supply tap water.” The first Defendant filed a lawsuit on March 3, 2017, upon the Defendant’s filing an application for the change of the purport of the claim and the petitioner’s original claim on November 27, 2017, it is evident that the Defendant “the portion exceeding KRW 386,363 of the disposition imposing KRW 78,380,100 upon the Plaintiff on May 24, 2016,” and that the purport of the claim is amended as stated in the purport of the claim.

In full view of the above facts, it is apparent that the first preliminary claim in the lawsuit in this case was filed 90 days from the date when the plaintiff was served with the ruling in this case, and the second preliminary claim in this case was filed Do as of July 27, 2017 from the date when the plaintiff became aware that the reply was made on July 27, 2017. Thus, the part of the first and second preliminary claim in this case in this case is unlawful as not complying with the period for filing the lawsuit in this case. The defendant's defense pointing this out has merit.

6. Conclusion

Therefore, the first and second preliminary claims in the lawsuit of this case are all dismissed as it is unlawful, and the plaintiff's primary claims are dismissed as it is without merit. It is so decided as per Disposition.

Kim Jin (Presiding Judge)

Kim Jong-Jin

Lee Jin-jin

Related Acts and subordinate statutes

▣ 수도법

The definitions of terms used in this Act shall be as follows:

17. The term "water services facilities" means the water intake facilities, the water reservoir, the water conveyance facilities, the water purification facilities, the water conveyance and drainage facilities, the water supply facilities, and such water supply facilities;

Other facilities related to water supply.

24. The term "water supply facilities" means the water supply pipes that a waterworks business operator has installed to provide the natural or processed water to ordinary consumers;

Water supply pipes (including indoor water supply pipes), measuring instruments, water tanks, taps and other water supply systems connected to the water supply pipes connected to the water;

institution necessary for the purposes of this section.

25. The term "water works" means works to newly install, expand, or remodel water services facilities. Costs incurred in installing (excluding water services facilities) water services under Article 70 shall be borne by a waterworks business operator.

A person who causes new installation or extension, etc. of waterworks by installing facilities using a large number of tap water, such as industrial facilities, etc.

(including)the construction of the waterworks and the maintenance of the waterworks to a person who carries on a project or act that damages the waterworks; or

The whole or part of the expenses necessary for the prevention of damage may be borne by the person.

② 제1항에 따른 부담금의 산정 기준과 징수방법, 그 밖에 필요한 사항은 대통령령으로 정한다. ▣ 수도법 시행령

Article 65 (Bearing Expenses) (1) Waterworks business operators shall cause the occurrence of expenses incurred in performing waterworks works pursuant to Article 71 (1) of the Act.

1. Installation or extension of waterworks by installing facilities using a large number of tap water, such as housing complex, industrial facilities, etc.

Where it is intended to charge an amount borne by borne by a person (including a person who has caused the cause) pursuant to Article 71 (2) of the Act;

A prior consultation shall be made with the obligor on the criteria, method, etc. for calculating and paying the discount charges. In such cases, the cooperation shall be made.

In the absence of any significance, a waterworks business operator shall take into account expenses, etc. incurred in water works according to the quantity of tap water used.

the amount to be borne may be determined.

(2) Where a waterworks business operator intends to charge charges on water works, etc. pursuant to paragraph (1), he/she shall calculate expenses incurred therein.

The payment deadline and place of payment shall be written and notified to a person who pays charges.

(3) The amount borne by burden-bearing entities under paragraph (1) shall be the sum of the following expenses:

1. Expenses incurred in newly installing or enlarging waterworks;

2. Construction expenses incurred in restoring facilities to their original state;

3. The amount equivalent to service charges for tap water which has become unusable due to washing, etc. of waterworks;

4. Expenses for water supply trains used due to the suspension of water supply;

5. Expenses for restoration of roads and expenses for the prevention of road ice;

6. Expenses for vehicles used and personnel mobilized for restoration works;

7. Other expenses, etc. for public relations.

⑥ 제3항 및 제5항에 따른 비용의 산출에 필요한 세부기준은 해당 지방자치단체의 조례로 정한다. ▣ 제주특별자치도 수도급수 조례

Article 2 (Definitions) The terms used in this Ordinance shall be defined as follows:

1. The term "water supply works" means works, such as new installation, remodeling, repair, and removal of water supply facilities;

6. The term "amount borne by borne by a person" means a person who causes expenses incurred in waterworks works or other acts.

The term "amount of expenses to be borne" means the amount to be borne.

Article 9 (Approval for Water Supply Works) (1) Any person who intends to obtain tap water from the Do Governor in advance as prescribed by the Rules.

It is necessary to request and obtain approval for the water supply work.

Article 12 (Implementation of Construction Works) (1) Design and construction of water supply works shall be conducted by the Do Governor: Provided, That the Do Governor shall not directly perform such construction works.

(1) The management of water supply costs and water supply facilities) Article 13 (Responsibility of water supply costs and water supply facilities management) (1) Outdoor facilities (in the boundary of the site, water supply facilities outside the boundary of the site and the boundary of the site thereof)

The relevant applicant shall be borne by the water meter: Provided, That the water meter due to aging or the same wave shall be borne by the relevant applicant.

Expenses incurred in replacing water supply facilities, repairing water supply facilities, or performing remodeling works following the aging of water supply pipes shall be borne by the Do Governor.

(c)

(2) Water supply facilities up to the outdoor water meter, among water supply facilities, shall be provided by Jeju Self-Governing Province in accordance with the contribution of an applicant.

It shall be owned by the owner, and the waterworks user, etc. shall manage it in advance.

(3) Water supply facilities in a site on the basis of a water meter shall be installed, maintained, and managed by a water user with the cost of facilities.

(i) Provided, That where an existing water meter is located in a building, the Do Governor shall apply water supply facilities to the boundary of the building.

The water user shall maintain and manage the indoor water supply facilities, etc.

(4) Where the Do Governor deems that the diameter of an water measuring instrument installed is inappropriate for the use of tap water, he/she shall do so.

The diameter of the water meter may be changed ex officio.

Article 14 (Calculation of Cost of Water Supply Construction) (1) Costs of water supply construction shall be the cost of material, construction, cost of road restoration, cost of design, cost of construction, and number of re-inspection

The aggregate of the completion and completion inspection fees shall be the same.

(2) Expenses incurred in addition to construction expenses under paragraph (1) shall be added to the actual expenses.

(3) Construction costs for water supply shall be calculated as actual construction costs based on a separate design: Provided, That in cases of intending to be a fixed amount system, it shall be calculated

The Do Governor shall announce the amount.

Article 15 (Payment and Settlement of Construction Costs for Water Supply) (1) A person who has obtained approval for water supply construction works shall designate the water supply construction cost by the Do Governor.

The payment shall be made by the designated date: Provided, That a beneficiary under Article 2 of the National Basic Living Security Act (hereinafter referred to as "number") shall be paid.

For household water supply works of a person (hereinafter referred to as "person") he/she may be paid in installments for six months.

(2) Where the construction cost referred to in paragraph (1) is not paid by the designated date, the applicant for the water supply project shall apply therefor.

shall be deemed to have been revoked.

Article 21 (Subject and Scope of Charges Borne by Responsible Persons) (1) The subject of charges borne by responsible persons under subparagraph 6 of Article 2 shall be as follows:

as listed in subparagraph (1).

2. Transmission and drainage facilities, such as conduits, etc., to supply new tap water to buildings, etc. located outside a water supply zone.

Where it is required to construct a new facility, the expenses required for the construction of the existing waterworks and the construction of the relevant waterworks;

Article 23 (Imposition and Collection of Charges Borne by Responsible Persons) (1) Where a person responsible for water supply works, etc. imposes construction costs incurred in expanding on a person who uses tap water, the person responsible for water supply works, etc. shall supply water

A request for water supply construction works shall be made by attaching the records necessary for the construction works.

(2) After a person who causes water supply works, etc. pays an amount borne by borne by borne persons, calculated pursuant to Articles 21 and 22, the Governor

(2) the Corporation. However, with respect to a construction requiring urgency, it shall be imposed and collected after the first implementation of the construction.

may be held.

(3) Where the Governor intends to collect charges borne by borne persons, he/she shall perform waterworks works to impose and collect charges.

The notice shall be given in writing to the person who caused the occurrence.