(영문) 울산지방법원 2020.6.11.선고 2019구합5131 판결

1. The Defendant’s disposition of nonconformity with the waste treatment business plan issued against the Plaintiff on October 24, 2018 is revoked. 2. The costs of lawsuit are assessed against the Defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On September 28, 2018, the Plaintiff submitted a business plan for waste disposal business (household waste collection and transportation business) to the Defendant.

B. On October 24, 2018, the Defendant rendered a non-conformity disposition with the waste business disposal plan (hereinafter “instant disposal”) on the following grounds, and notified the Plaintiff thereof.

A. From the recent 3 years (14-17 years) population increase (12,038), the volume of domestic waste collected in 17 years is 64.3 tons a day to 64.3 tons a day from 2014. (No. 365 days/years) In the case of B, the disposal of domestic waste collected and transported by four companies are entrusted to each region for the collection and transportation of domestic waste, and if the operation ratio of vehicles owned by four companies is less than 50% a new permission, the quality of cleaning services may lower rather than the quality of cleaning services, such as construction of small businesses, aggravation of financial soundness by company due to excessive competition, and resident inconvenience. At present, compared to the increase of population, there is no substantial increase of domestic waste or expansion of the entrusted area.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Defendant issued the instant disposition upon the Plaintiff’s application for reasons other than those stipulated in Article 25(2) of the Wastes Control Act. Among the reasons of the instant disposition, the trend of reducing the quantity of domestic waste collection is merely a temporary phenomenon, and it is more likely that the existing company’s present capacity to collect and transport domestic waste exceeds the quantity of domestic waste discharged and does not allow the new company’s entry into the market is virtually maintained the exclusive right of the existing company. Therefore, the instant disposition is an unlawful act of deviating from

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

When comprehensively considering the legislative purpose and matters of the Wastes Control Act, the nature of permission for a waste disposal business, the purpose of the waste disposal business plan to ensure the smooth and appropriate disposal of wastes, etc., when examining whether a waste disposal business plan is appropriate, the matters listed in the subparagraphs of Article 25 (2) of the Wastes Control Act may be examined, and if it is deemed that there is no conflict or problem, such as the implementation of a stable and efficient responsible administration for the collection, transportation, and disposal of wastes, if it is deemed that there is a risk of undermining the public interest, such as the implementation of the business plan.

However, in cases where only a new company applies for a new permit under the circumstances where only a new company collects and transports wastes within the jurisdiction of the relevant administrative agency determines the suitability of a waste treatment business plan, there is no special circumstance that would make it impossible for the existing company to carry out a stable and efficient responsible administration for the collection and transport of wastes due to excessive competition between the relevant local government and the collection and transport of wastes in comparison with the quantity of wastes generated in the relevant local government. Moreover, even if the existing company imposes restrictions on its business area and other necessary conditions under Article 25(7) of the Wastes Control Act, it is not possible to solve such problems, solely on the ground that the existing company does not interfere with the collection and transport of wastes, the refusal of such permission is unlawful because it substantially maintains the number of permitted companies or maintains the exclusive authority for waste collection and transport, thereby going against the purpose of statutes or loses objective rationality and validity (see, e.g., Supreme Court Decisions 2011Du1283, Nov. 10, 2011; 2013Du313731, Oct. 3131, 20.

(ii) the facts of recognition

A) Based on Article 25(1)8 of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party, the Defendant concluded a contract to collect and transport domestic wastes by means of a negotiated contract without undergoing open recruitment procedures.

B) The Defendant is entrusting the agency with the collection and transportation of domestic wastes by region by dividing Ulsan B into four regions.

C) Four companies entrusted with the collection and transportation of domestic wastes by the Defendant were each the first permission date from 1997 to 1999, and there was no new company from 20 years to 20 years.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1 and 2, purport of the whole pleadings

3) Whether the discretion is deviates or abused or not

In light of the above-mentioned facts and the fact-finding by the court about Ulsan Metropolitan City and Ulsan Metropolitan City and Ulsan Metropolitan City, each fact-finding by the plaintiff, even if it is required to notify the plaintiff of the suitability of the waste disposal business plan, if it is allowed to enter a new company beyond simply 'the existing company does not have any particular obstacle to the collection, transportation, etc. of wastes', it cannot be concluded that it is impossible to carry out the stable and efficient responsible administration for the disposal of domestic wastes due to excessive competition between the small company and the small company, or that it cannot be resolved even if the business area is limited or any other necessary condition is attached. Rather, the disposition of this case is only derived from maintaining the monopoly or advantages of the existing company by preventing the plaintiff, etc. from entering the new company. Accordingly, the disposition of this case is unlawful by abusing and abusing discretion.

A) From 2014 to 2019, C Co., Ltd. among the existing enterprises, eight vehicles for D Co., Ltd., two vehicles for D Co., Ltd., and five vehicles for E Co., Ltd. (F had increased the number of vehicles from 8 vehicles to 11 vehicles for 2014, but there was no change in the total number of vehicles by 8 vehicles for 2019.

B) According to the results of the fact-finding with the Ulsan B office, there is an increase in the performance of domestic waste disposal in Ulsan B from 2015 to 2019, and the cost of domestic waste disposal is also increasing every year. Thus, it cannot be deemed that there is no new demand for domestic waste collection and transportation business in Ulsan B office.

C) Under the Ministry of Environment’s guidelines for permission for waste treatment business, “I, review of application for permission, and approval 8. competition system introduced,” in principle, a competitive bidding shall be conducted at the time of collecting and transporting domestic waste and the selection of agency. However, if the head of a local government deems it necessary to enter into a negotiated contract, such as where it is urgently needed to select an agency for public interest, it may enter into a negotiated contract.”

D) From 1999 to 2019, four agencies run the domestic waste collection and transportation business in the designated zone without any change, not the selection of a waste disposal company through competitive bidding, but the local contract system with the existing agency, which seems to have the possibility of collusion among the existing agencies.

E) There is no circumstance in which the Defendant’s permission to enter a new company prior to the instant disposition was examined on the environmental change in the domestic waste collection and transportation industry, or the change and coordination of its business territory accordingly. However, it is difficult to find that the evidence submitted by the Defendant alone would lead to excessive competition between the small and medium business entity and the small business entity if the Defendant is permitted to enter a new company in the domestic waste collection and transportation industry.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.