2011A motion filed for adjudication on the constitutionality of a law

○○○○ Corporation

Attorney Kang Dong-dong, Kim Jong-tae

Seoul High Court 201Nu7719 Suspension of Disposition

o October 26, 201

The motion of this case is dismissed.

Article 38(1)2, Article 42(1)9, and Article 71 of the Water Quality and Ecosystem Conservation Act

(hereinafter collectively referred to as "the provision of this case" is referred to as "the combination of the above provisions of this case").

agency shall make a proposal to section 2.

1. Case summary

A. The head of the Bale Between Bale and Bale Before 2010, on June 29, 2010, with respect to the applicant who is the trustee of wastewater treatment business.

water pollutants that flow into salt prevention facilities may be discharged without going through the final outlet;

on the ground that three pipes corresponding to "facilities" are installed, the preservation of water quality and aquatic ecosystems

Application of Article 38(1)2, Article 42, and Article 71 of the Water Quality Conservation Act (hereinafter referred to as the "Water Quality Conservation Act").

The 10-day disposition was taken to suspend operation (hereinafter referred to as the "disposition of this case").

B. The applicant is dissatisfied with the instant disposition, and the Incheon District Court is against the head of the B/L BU in the event of B/L.

A lawsuit seeking the revocation of the instant disposition was filed under 2010Guhap2894, but a claim was filed on February 10, 2011

The applicant filed an appeal with respect to the foregoing case and is pending in the appellate court as the case.

On September 21, 201, which had been filed on September 21, 201, filed an application with the court for an adjudication on the constitutionality of the provision of this case.

2. The legal provisions applicable to the request for adjudication on the constitutionality of a law;

m. Water Quality and Aquatic Ecosystem Conservation Act

Article 38 (Operation of Emission and Preventive Facilities)

(1) A business operator (the permission or change for the installation of wastewater non-discharge facilities pursuant to the proviso to Article 33 (1) or (2).

A person who operates a preventive facility (excluding a businessman who has obtained light permission) or a person who operates the preventive facility (joint bank as prescribed in Article 35 (5).

The representative of an operating organization of branch facilities shall include the representative of an operating organization of branch facilities; hereinafter the same shall apply) shall engage in any of the following conduct:

shall not be eligible for such approval.

2. Discharging water pollutants that flow into prevention facilities without passing through the final outlet, or allowing them to pass the final outlet;

An act of installing facilities capable of discharging without being kept in a place

Article 42 (Cancellation, etc. of Permission)

(1) Where a business operator or a person who operates preventive facilities falls under any of the following subparagraphs, the Minister of Environment shall do so:

Order to revoke permission for the installation or alteration of emission facilities or order the closure of emission facilities or the suspension of operation for not more than six months;

(1) An installation or alteration permit may be cancelled: Provided, That in cases falling under subparagraph 1, an installation or alteration permit for emission facilities shall be cancelled or closed;

shall issue an order for reform.

9. Where he/she commits an act falling under any subparagraph of Article 38 (1) or any subparagraph of paragraph (2) of the said Article;

Article 71 (Criteria for Administrative Disposition)

The standards for administrative disposition against any act violating this Act or any order issued under this Act shall be prescribed by Ordinance of the Ministry of Environment.

3. The claimant's assertion;

The provisions of this case shall go through the final discharge outlet for water pollutants flowing into water pollution prevention facilities.

(1) A disposition to suspend the operation of a facility that can be discharged shall be taken.

(b) provide that any person shall be entitled to any

The act of installing facilities that can be used for discharging wastewater without permission shall discharge wastewater without permission.

(b) It is separate from the installation of a facility with probability or risk of unauthorized discharge, and unauthorized discharge;

In spite of facilities that can be used in the discharge, wastewater discharge without permission according to individual and specific circumstances;

may be used for unauthorized discharge, even if it is established for a legitimate purpose other than for unauthorized discharge.

The provision of this case which allows the suspension of operation by installing a able facility

It violates the principle of equality, the principle of excessive prohibition, or the principle of clarity in the Constitution.

4. Whether the provision of this case is unconstitutional

The provision of this case is practically difficult to detect the site of unauthorized discharge of wastewater, and it is the best possible to detect wastewater.

If the installation of pipelines that can be discharged without passing through the final discharge outlet is permitted, the unauthorized discharge of wastewater;

In light of the fact that wastewater is likely to be implemented systematically and continuously, the actual unauthorized discharge of wastewater;

shipping shall not go through the final discharge outlet even if the shipment did not result in an act.

even if an act of installing a "facilities capable of withdrawal" has been conducted, the suspension of operation shall be allowed to be conducted.

(2) the Corporation.

As above, ① legislative purport of the instant provision, ② ex post facto control after discharging wastewater without permission.

To prevent water pollution in advance by controlling wastewater discharge facilities, rather than by unauthorized discharge;

Water quality of public waters, such as rivers, lakes, marshes, etc., to prevent hazards to public health and the environment caused by salt;

and aquatic ecosystems shall be properly managed and preserved to ensure that citizens enjoy benefits from such management and preservation;

and at the same time, a water quality report aimed at enabling future generations to succeed.

Article 1 of the Water Quality Conservation Act (Article 1 of the Water Quality Conservation Act); and (3) Water pollution prevention facilities are water pollutants.

(Article 2 subparag. 12 of the Water Quality Conservation Act) a group of facilities to be removed or reduced;

The final wastewater shall be removed or reduced under the condition that water pollutants are removed or decreased in accordance with the process of preventive facilities.

Since the discharge outlet must be discharged through the discharge outlet, such preventive facilities are introduced into preventive facilities due to the characteristics of the above preventive facilities.

There is a special reason to install a facility to discharge wastewater without passing through the final discharge outlet.

The Water Quality Conservation Act (hereinafter referred to as the "Water Quality Conservation Act") provides that a person who has installed or has obtained the installation permit shall do so.

any change in the matters for which a license or report has been granted shall be required to be granted or filed.

section 3) In the case of a given facility, any point that may be installed through a licence or reporting procedure

In doing so, the provision of this case is against the principle of equality under the Constitution or is against the principle of excessive prohibition.

shall not be deemed to have been discharged.

In addition, since the contents of the provision of this case are relatively clear and clear, the supplement made by judges is made by judges.

It is not arbitrary and unclear to the extent that it is impossible to confirm the meaning through the determination of value.

It cannot be seen that the instant provision violates the principle of clarity under the Constitution.

5. Conclusion

The motion for the adjudication on the constitutionality of the instant case is dismissed.

The presiding judge, the whole judge;

Judges Kim Jae-ho

Judges Lee Jong-tae