Jinx Co., Ltd. (Law Firm Mail et al., Counsel for the defendant-appellant)

Ulsan Metropolitan City Mayor (Law Firm Accompanying, Attorney Jeong-soo et al., Counsel for defendant-appellant)

March 27, 2014

1. On May 23, 2012, the Defendant’s disposition of suspending the entrusted wastewater treatment business that the Plaintiff rendered shall be revoked for three months.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiff, the remainder 1/5 is assessed against the Defendant.

On May 23, 2012, the Defendant’s imposition of KRW 20,610,168,960 for wastewater treatment business suspension three months, 10 days of the suspension of operation of wastewater discharge facilities and prevention facilities, and 20,610,168,960 for the Plaintiff shall be revoked.

1. Details of the disposition;

A. On September 24, 2004, the Plaintiff was a company established for the purpose of the development, manufacture, and sale of water treatment wastewater, the wastewater treatment business (200 cubic meters of wastewater discharged a day) and the wastewater recycling business (200 cubic meters of wastewater discharged a day). On July 21, 201, the Plaintiff was a third-class business (200 cubic meters of wastewater discharged a day) that obtained approval from the Defendant to change the maximum wastewater discharged a day from the Defendant to 49.9 cubic meters of wastewater discharged a day from the Defendant (200 cubic meters of wastewater discharged a day to below 70 cubic meters).

B. On November 24, 2011, the environmental management and employees of the Ulsan Metropolitan City Office and the employees of the Ulsan Metropolitan City ○ Sewage Treatment Center (hereinafter “Inspection personnel”) installed a facility capable of discharging wastewater through a water tank in the Plaintiff’s workplace through a water tank located in the Plaintiff’s workplace, and confirmed that the pipes were different from other pipes, and collected samples at the final outlet of wastewater.

C. On November 25, 201, the Defendant requested the head of the Ulsan Metropolitan City Health and Environment Research Institute to conduct an inspection of the collected wastewater sample, and the head of the Ulsan Metropolitan City Health and Environment Research Institute sent the Defendant the result of the water quality inspection of the sample on December 5, 2011. The content is as indicated in the “the result of the water quality inspection” in the attached Form.

D. On May 23, 2012, the Defendant issued a business suspension three months (hereinafter “business suspension disposition”) pursuant to Articles 32, 38, 62, 64, and 71 of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “former Water Quality Conservation Act”) to the Plaintiff on the ground that a wastewater treatment business operator installed pipelines not necessary for wastewater treatment and discharges water pollutants in excess of the permissible discharge levels on the grounds that he/she did not normally operate wastewater discharge facilities and prevention facilities without justifiable grounds; ② Disposition of the suspension of operation for the purpose of discharging water pollutants in excess of the permissible discharge levels on the grounds that he/she discharged water pollutants in excess of the permissible discharge levels (hereinafter “disposition of the suspension of operation”); and ③ Disposition of the discharge dues in excess of the permissible discharge levels on the grounds that he/she discharged water pollutants in excess of the permissible discharge levels under Articles 32, 38(1), 42, and 71 of the former Water Quality Conservation Act.

4,182.30 3,982.30 346 2,70 2,704,513,160 2,98.60 42,98.60 42,998,220 2220 5,560 5,560 60 60 7,465,746,540 132.444,45,540 546,540 132.444,4546,540 136,540 132.444,356,560 10,560 104,1630 106 106,306 106 16,306 1630,164,560,810 net

* Period: from August 8, 201 to November 24, 2011

*daily discharge: 37,726 tons of wastewater discharged ±109 days;

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 5, 6, Eul evidence No. 16, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) As the facts charged that Nonparty 2’s representative director discharged water pollutants in excess of permissible discharge levels, the Defendant did not have been convicted during the criminal trial due to the violation of the Water Quality Conservation Act, but the Defendant’s each disposition of this case was contrary to the principle of presumption of innocence recognized under the Constitution and the Criminal

2) The disposition of suspension of business must be revoked on an unlawful basis as follows.

A) On April 2008, the Plaintiff maintained the installation of a breadth station for the purpose of using the MBR construction among the methods of treating wastewater, and did not illegally install pipelines that are not necessary for wastewater treatment for the purpose of illegally discharging wastewater.

B) The Defendant violated the principle of trust protection in light of the fact that even at the time of the Plaintiff’s workplace guidance and inspection, the Plaintiff did not treat the sources installed by the Plaintiff as a violation of the law, which is a confidential discharge outlet.

C) The disposition of suspension of business takes effect only three days to the extent that the Plaintiff’s procedures for remedy for rights are hindered, and is unlawful by deviating from the scope of discretion.

3) The suspension of operation and the disposition of suspension of operation must be revoked for the following reasons.

A) Article 32(1) of the former Water Quality Conservation Act, which is a legal basis for the disposition of imposition, provides that an excess discharge dues may be imposed on a business operator who discharges water-quality pollutants that exceed the permissible emission levels simply, without providing the minimum information about the permissible emission quantity, is comprehensively delegated to the Presidential Decree or Ordinance of the Ministry of Environment with regard to the detailed contents of permissible emission levels for which the determination of the calculation method of dues and the imposition of excess discharge dues is determined. Article 41(1)2 of the same Act delegates exclusively to the Presidential Decree without stipulating basic matters concerning the calculation method of discharge dues and the kinds of pollutants. Thus, such provisions violate Articles 75 and 95 of the Constitution requesting the clarity

B) Articles 45, 47, 49, and 54 of the Enforcement Decree of the Water Quality Conservation Act, which are the basis for the disposition of imposition, stipulate the applicable standards at will regardless of the actual emission period, concentration, and quantity of pollutants, and thereby stipulate the amount to be imposed accordingly. In particular, for administrative convenience, the date on which the business operator reported whether to comply with the improvement order may be deemed as the expiration date of the emission period, resulting in an excessive imposition of dues. This is in violation of the principle of proportionality (Prohibition of Excess) under the Constitution.

C) In a position that is unable to represent the nature of the target sample in violation of the official test standards for water pollution, the Defendant’s collection of samples without collecting samples more than three times as samples and its procedure is unlawful.

D) From August 8, 2011 to November 23, 2011, the Defendant did not have measured the permissible emission levels for wastewater discharged by the Plaintiff, and it cannot be readily concluded that the wastewater discharged by the Plaintiff is included in excess of the permissible emission levels in the above period. In light of the fact that the nitrogen amount discharged by the Plaintiff’s workplace accounts for a high rate of the pollutant emission density when comparing it with the nitrogen amount flowing into the ○○ Sewage Treatment Station, there is a defect in calculating the pollutant emission density.

E) The discharge period, which forms the basis for calculating the water quality excess discharge dues, shall be the total two days from November 24, 201, which is the date of control, to the following day.

F) If the amount of the charge imposed exceeds twice the annual sales of the Plaintiff, the Plaintiff’s failure to pay the charge would thereby threaten the livelihood of its employees, and may cause serious environmental pollution because there is no way to treat neighboring companies’ wastewater. The degree of disadvantage the Plaintiff received due to the disposition of imposition is too large than that of the public interest needs to be imposed, and thus, is unlawful beyond the scope of discretionary authority.

B. Facts of recognition

1) The Plaintiff’s workplace, around August 2007, treated low-concentration wastewater entrusted to the marine treatment company as biological treatment methods in a breadth, and the high-concentration wastewater was re-entrusted to the marine treatment company for treatment. From October 2006, the Plaintiff’s workplace started to treat the high-concentration wastewater in itself from around August 2007.

2) However, as the Plaintiff’s place of business increases the high density of wastewater to be treated in itself, it could not be treated biologically from the time of breadth. Around April 2, 2008, a gate was installed with permission for the MBR construction (the method of enabling the Plaintiff to make a kind of leisure facility in the breadth as an separator, and to immediately discharge it into the discharge outlet) and the MF was not used in accordance with the MBR construction after putting microorganisms into the test, and the operation was no longer complicated only once after installing an emulator for a trial operation on the ground that there was no economic feasibility due to the heavy costs. On July 201, 201, the MaBR construction was not operated by installing a emulpator for a large scale of wastewater concentration and the emulpator was not operated.

3) As seen earlier, the Plaintiff’s workplace was unable to properly treat the entrusted wastewater, without properly operating the installed facilities, and created a control response manual. Of the 1 to 4th of the breadth, the Plaintiff’s workplace stored high-concentration wastewater in the breadth 1 to 2nd of the breadth 1, and the 3 and 4th of the breadth 1 to 2nd of the breadth 2nd of the breadth 1 and the breadth 2nd of the breadth 3 and the 2nd of the breadth 2nd of the breadth breadth 3 and the 2nd of the breadth 1 and the breadth 1 and the 2nd of the breadth 1st of the breadth 1st of the breadth 2nd of the breadth breadth 2nd of the mBR 2nd of the breadth breadth. The Plaintiff’s workplace has controlled the breadth 3rd of the breadth 3 and the 3nd of the breadth 4nd of the breadth

4) From August 8, 2011, the Plaintiff’s workplace, from the point of business, divided the breadth into 1, 2, and divided the breadth into 1, and divided the same into two parts, and made the biological treatment by putting the processed wastewater in a dynamic chemical, etc., and then discharged it after going through the second bed and filtering equipment. The second bed in the second bed, without discharging the remaining wastewater into the final outlet through 3,4 parts at night, without going through bed and filtering or filtering equipment. In the event there is control information, the Plaintiff’s workplace, from the point of business, was under control so that the controlling public official can collect the wastewater from the first bed and collected as samples of the wastewater in a single series. However, if it is found that the occurrence of the entrusted wastewater in the dynamic chemical, which was treated as the 1st bed by the 1st bed in the process of the occurrence of the wastewater, making the 2nd bed and discharged into the 1st bed in the 2nd bed.

5) On November 17, 201, 201, the employees of the Ulsan Metropolitan City ○○○ Sewage Treatment Operator conducted night joint inspection on the drain route of the inflow water due to the high level of measuring level of H and the total quantity of water discharged from the ○ Sewage Treatment Station. On November 23, 201, the Plaintiff’s employees discovered the water discharged from the Plaintiff’s workplace, suspended discharged water discharge, and cleaned the discharge outlet. The inspection personnel failed to collect wastewater samples in a state where the collection of samples was not intended due to the dilution of discharged water.

6) On November 24, 201, at around 22:00, the inspector confirmed that the wastewater seen to be red from the sewage hole of the Plaintiff’s workplace flows out from the upper upstream, and as seen earlier, the inspector collected samples from the Plaintiff’s workplace final outlet. The head of the Plaintiff’s workplace quality control team Nonparty 1, who was aware of the collection, attempted to tear knife k of ticks containing samples collected by the inspector for the purpose of destroying the water without any evidence, but failed by the inspector, and shicked them to the inspector, and the disease containing samples collected.

7) Nonparty 2, the representative director of the Plaintiff, and Nonparty 1, from the Ulsan District Court to November 24, 201, instructed the Plaintiff’s workplace on November 24, 201, and on-site workers, including Nonparty 3, to flow wastewater which did not go through an additional outlet in the second-department breadth, by destroying micro-organisms, and thereby failing to perform their functions, and subsequently, through the main pipes installed in the second-department breadth, to discharge wastewater into the final outlet 445.19 cubic meters of wastewater containing water pollutants exceeding the permissible discharge standards, including water pollutants exceeding the permissible discharge standards, from August 8, 201 to November 24, 2011, Nonparty 1 was sentenced to imprisonment with labor for a period of suspension of the execution of the execution of the execution of the above Act, and Nonparty 1 was sentenced to imprisonment with labor for a period of more than 37,726 cubic meters of wastewater containing water pollutants exceeding the permissible discharge standards, and Defendant 210 and Nonparty 210.

[Reasons for Recognition] Facts without a dispute, entry in Eul's Evidence Nos. 4, 5, 7, 8, 9, 10, 11, 20, 22, 23, 24, 25 (including branch numbers), and the purport of the whole pleadings

C. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

D. Determination

1) As to the assertion that each of the dispositions of this case violates the principle of presumption of innocence.

The fact-finding for an administrative disposition is irrelevant to the confirmation of conviction in a criminal trial, so the facts of each disposition of this case can be recognized even before a conviction is rendered in a criminal trial proceeding related to this case, and the recognition of facts based on such disposition cannot be deemed to conflict with the principle of presumption of innocence under the Constitution (see Supreme Court Decision 85Nu407, Jun. 10, 1986, etc.). Thus, the plaintiff's above assertion is without merit.

2) Whether the disposition of business suspension is unlawful

A) The Plaintiff, from around August 8, 201 to around 2, 201, discharged wastewater without permission through 3,4 parts installed in the 2nd breadth of the width, as seen earlier. The Defendant, as the Plaintiff, issued a disposition of business suspension pursuant to Article 71, Article 64(3)2, Article 62(2)3, Article 105(1) [Attachment Table 22] of the Enforcement Rule of the Water Quality Conservation Act, Article 105(1) [Attachment Table 22] of the Water Quality Conservation Act, on the ground that “in the event that a wastewater treatment business operator installs pipelines not necessary for wastewater treatment, he/she discharged water pollutants exceeding the permissible discharge levels.” The issue is whether the three and four parts installed in the 2nd breadth of the width width of the water quality preservation Act [Attachment Table 22] subparagraph 2(g)1 of the Enforcement Rule of the Water Quality Conservation Act.

B) In this case, even if the Plaintiff’s place of business, upon obtaining permission from the Defendant for the MBR method on April 2, 2008, established a breadth 3 and 4, and added microbials and added the test, and did not use the microbials in accordance with the MBR method, the Plaintiff’s place of business. However, as long as there is no evidence to acknowledge that the Plaintiff installed a branch of the MBR method to illegally discharge wastewater, it is difficult to view that the installation of a breadth 2 department of the breadth gate constitutes “where the Plaintiff installed pipelines that are not necessary for wastewater treatment.”

C) Therefore, the disposition of business suspension, which is premised on the installation of pipes not necessary for wastewater treatment, cannot be deemed as having a ground for the disposition, and thus, the plaintiff's above assertion is justified (the remaining argument about the disposition of business suspension is not judged).

3) Whether the disposition of suspension of operation and disposition of suspension of operation are illegal

A) Whether a statute based on the disposition violates the principle of prohibition of comprehensive delegation and proportionality

The permissible emission levels in excess of the permissible emission levels are calculated based on the methods prescribed in the above Acts and subordinate statutes, and as long as there are no special provisions in the relevant Acts and subordinate statutes, administrative agencies should calculate the amount of pollutants discharged due to the actual operation of the business operator for the purpose of operating the business. However, the actual emission volume of pollutants over a certain period of time cannot be calculated based on the objective facts as possible. However, it is impossible to estimate the accurate emission volume and the subsequent calculation of emission dues due to the relationship between the time and completion date of the business operator and the extension period, while considering that the detection of the violation is difficult and it is difficult to restore the damaged environment to the original state due to the excessive emission of pollutants, the calculation method and the standard of excess emission volume and emission dues must be conducted in accordance with the specific criteria prescribed in the above Acts and subordinate statutes. Meanwhile, since the calculation method and guidelines are in the area requiring a professional and scientific judgment and flexible regulation, each provision of the Enforcement Decree of the Water Quality Conservation Act on this point cannot be seen as violating the principle of proportionality 200 prior to the implementation date of the Act.

B) Whether the method of collecting samples is defective

The following facts revealed from the above facts: ① the Plaintiff was preparing a control response manual against the Defendant’s water quality guidance inspection; ② the Plaintiff stored the water pollution excess wastewater and other wastewater that are not so, without permission at night without permission; and the Plaintiff avoided control over the water pollution excess wastewater when there is control information; on November 17, 2011, the Defendant suspended the drainage before collecting the samples; Nonparty 1, the head of the Plaintiff’s workplace, the head of the Plaintiff’s water quality team, attempted to destroy the container of the collected samples on November 24, 201; ② Nonparty 1, the head of the Plaintiff’s workplace, intended to destroy the container of the collected samples on at least three occasions; ② the container of the collecting samples in this case, it is unclear whether the container was contaminated with the substance of the sample sample at least three times, and thus, it is difficult to view the Plaintiff’s collection of samples as the main purpose of the collection of samples in this case, and thus, the Plaintiff’s allegation that the collection of samples was not unlawful.

C) Whether the emission density and the emission period of pollutants are calculated defective

(1) Regarding the concentration of pollutants

On November 24, 2011, the Defendant requested the head of the Health and Environment Research Institute of Ulsan Metropolitan City to conduct an inspection of samples collected from the final outlet of the Plaintiff’s workplace, and calculated excess discharge dues according to the concentration of pollutants according to the results of the inspection of water quality. However, the Plaintiff’s assertion is unreasonable to calculate the density of pollutants according to the results of the inspection of water quality on November 24, 201, or the following circumstances that can be known to the purport of the above facts and relevant Acts and subordinate statutes, i.e., (i) the administrative agency should calculate the density of pollutants based on objective facts as far as possible; however, the actual concentration of pollutants over a certain period of time is not the same as the time of the completion of the inspection, as well as the period, so it is practically impossible to calculate the emission density of wastewater without permission. On the other hand, considering the fact that it is difficult to detect the pollutants in question and that it is difficult to recover the damaged environment, based on the method of calculating the emission density and its standard, as stated in the Enforcement Decree of the Act.

(2) As to the discharge period

(A) According to Article 47(1) of the Enforcement Decree of the Water Quality Conservation Act, in cases of improving the emission period in the calculation of excess discharge dues by submitting an improvement plan under Article 40(1)1 and 2 of the Enforcement Decree of the Water Quality Conservation Act, the emission period shall be from the beginning date of the water pollution (in cases where the beginning date of the discharge is unknown, referring to the date of collecting water pollutants to inspect whether the order exceeds the permissible emission level) to the scheduled date of completion of the performance of the improvement order, the

(B) In the instant case, the Plaintiff’s workplace appears to have discharged wastewater without permission from around 2006. However, from around August 8, 201 to around November 24, 201, the Plaintiff’s workplace divided into 1, 201, which was controlled by at least inspectors, into 1, and 2 parts, and discharges wastewater with low concentration into 2 parts after undergoing biological treatment, and without permission through 3,4 parts of 3, and 4 parts of wastewater which cannot be treated without permission in the final outlet at night. In full view of the fact that the Plaintiff’s workplace did not seem to have changed in the nature of the wastewater, the process of treating it without permission, and the process of discharging it without permission, the Plaintiff’s assertion that the discharge period was against the date on which the water pollutants were discharged on August 8, 201, and the Plaintiff’s assertion that the discharge period began to have been calculated as the date on which the water pollutants were leaked.

D) Whether to deviate from or abuse discretionary power

As the Plaintiff’s workplace discharges water pollutants exceeding the permissible discharge standards, the obligation to pay excess charges pursuant to the provisions of the Act regardless of the cause thereof occurs. Water pollution, regardless of its cause, is damaged to the environment and its burden remains at the expense of the general public. It would rather conform to the purport of the system of emission charges without considering the source of pollution. The imposition of emission charges on the Plaintiff who discharges large amounts of pollutants exceeding the permissible discharge standards under this Act, based on the quantity of the discharged pollutants, cannot be deemed to be contrary to the principle of equity or the principle of proportionality, even if considering the circumstances asserted by the Plaintiff. Thus, the Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, on May 23, 2012, the Defendant’s claim for the revocation of the disposition for the suspension of wastewater treatment business, which the Plaintiff rendered on May 23, 2012, is justified, and the remainder is dismissed as it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-Gyeong (Presiding Justice) (Presiding Justice)