In a case where the former business operator imposed the charges for wastewater treatment facilities in arrears on the stock company Gap who acquired the ownership of a factory manufacturing or processing factory at the auction of the real estate auction, the case affirming the judgment below that the transfer of ownership of the factory or place of business through auction is not included in the "person who acquired the factory or place of business" under Article 49-3 of the Water Quality and Aquatic Ecosystem Conservation Act.

Article 49-3 of the Water Quality and Aquatic Ecosystem Conservation Act

Kim Dong-dong Co., Ltd.

The East Sea Market (Government Law Firm Corporation, Attorneys literature-Bed et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision (Chuncheon) 2010Nu646 decided May 18, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the allegation in the grounds of appeal on whether the obligation to pay the charges for terminal treatment facilities is succeeded

Article 49-3 of the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter “Water Quality Conservation Act”) provides that “A person who acquires a factory or place of business, etc. subject to the collection of a terminal treatment facility charge shall succeed to the rights and obligations concerning the charges for terminal treatment facilities incurred by the transferor in accordance with this Act before the transfer, unless otherwise specifically agreed by the parties.

citing the reasoning of the judgment of the court of first instance, the court below determined that the Plaintiff, who acquired the ownership of the factory of this case in the auction procedure, did not have a duty to receive the succession of the former owner’s liability to pay the charges, on the ground that it is reasonable to deem that the “person who acquired the factory, place of business, etc.” under Article 49-3 of the Water Quality Conservation Act refers to the person who acquired the ownership of the factory, place of business, etc. by legal act with the transferor.

The relevant provisions and legislative purport of the relevant Acts and subordinate statutes, and the cases of transferring or taking over discharging facilities, etc. under Article 36(1) and (2) of the Water Quality Conservation Act, and the cases of taking over discharging facilities, etc. according to auction procedures. In light of the circumstances revealed by the lower court, the lower court’s determination that the term used in the same Act and subordinate statutes does not include a person who takes over the ownership of a factory, place of business, etc. through auction in the “person who takes over a factory, place of business, etc.” as provided in Article 49

The court below did not err in the misapprehension of legal principles as to the meaning of "acquisition" under Article 49-3 of the Water Quality Conservation Act, as alleged in the grounds of appeal.

2. As to the remaining grounds of appeal

The lower court determined that each of the instant dispositions was not only an administrative disposition subject to appeal litigation, but also that it was difficult to deem that the Plaintiff agreed to pay the instant charges to the Defendant on the sole basis of the relevant judgment, as an act of law enforcement with respect to the specific facts by the Defendant as the public authority.

Under the Framework Act on the Management of Charges, charges in this case constitute charges to which the Framework Act on the Management of Charges applies. Under the Framework Act on the Management of Charges, charges in this case shall be specifically and clearly prescribed in the relevant Acts and subordinate statutes, including the subject to imposition and collection of charges, purpose of establishment, requirements for imposition, calculation standards, calculation method, imposition rate, etc. (Article 4). The imposing authority shall notify the person liable to pay charges in advance of the legal basis for imposition of charges, amount to be paid, grounds for calculation and measures at the time of unpaid payment, etc. (Article 5(2)). In light of the aforementioned provisions and the relevant provisions of the Water Quality Conservation Act and the Enforcement Decree thereof, and the relevant provisions and records, which are the grounds for the imposition of charges in this case, the imposition of charges in this case shall not be determined by an agreement between the parties, whether the charges in this case should be imposed in accordance with the requirements and procedures prescribed by the relevant Acts and subordinate statutes. The imposition of charges in this case shall be based on the erroneous interpretation of Article 49-3 of the Framework Act on the Conservation of Charges.

In the same purport, the judgment of the court below that each disposition of this case constitutes an administrative disposition is just, and there is no violation of law, such as misapprehension of legal principles, as otherwise alleged in the grounds of appeal. In addition, the ground of appeal that the disposition of this case is not a new disposition different from the disposition of imposition of charges imposed on the previous business operator, and that the plaintiff can only dispute the revocation and the invalidity only cannot be asserted as an independent argument

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)