(영문) 대법원 2017.12.22.선고 2014두42834 판결

1. According to Article 35 of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “Water Quality and Aquatic Ecosystem Conservation Act”), a business operator shall install water pollution prevention facilities when he/she installs or alters the relevant discharge facilities (paragraph (1). In such cases, the business operator may install joint prevention facilities to jointly treat water pollutants discharged from discharge facilities. In such cases, the business operator shall be deemed to have installed prevention facilities for water pollutants in his/her place of business (paragraph (4)), and the business operator shall establish an operating organization of the relevant facilities and appoint its representative to establish the prevention facilities (paragraph (5)). Furthermore, Article 45 of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act delegates matters necessary for the installation and operation of joint prevention facilities to the Minister of Environment. The purport of the proviso to Article 45 of the Water Quality and Aquatic Ecosystem Conservation Act is to enable the business operator or the representative of the joint prevention facilities to autonomously install the discharge facilities, including the allocation ratio and operation of discharge charges and the discharge charges (2).

Therefore, if business operators installed joint prevention facilities to jointly treat water pollutants discharged from discharge facilities, and it is impossible to measure the concentration of water pollutants and water pollutants in each place of business, the business operators imposed discharge dues on the business operators based on the â€˜the ratio of allocation of discharge dues by place of business prescribed in the Regulations on the Operation of Joint Prevention Facilities' submitted by the administrative agencies.If there are special circumstances, such imposition disposition of discharge dues cannot be deemed unlawful, unless there are special circumstances, such as that the allocation criteria prescribed in the

Meanwhile, according to Article 30(1) of the Small and Medium Enterprise Cooperatives Act, matters concerning budget and accounting (Article 1), membership fees and imposition of expenses (Article 2(1)2), and other matters (Article 130(1) and (3) of the Small and Medium Enterprise Cooperatives Act (Article 130(1) of the same Act, which impose duties on members of a cooperative (Article 30(1) and (2) may be prescribed by regulations, except as otherwise provided for in articles of association. In addition, a cooperative may obtain approval from the competent authority in order to enact, amend, or repeal the regulations provided for in each of the above matters. According to Article 136 of the same Act, the competent authority may entrust the president of the Korea Federation of Small and Medium Business with

In addition to the contents and structure of the above regulations, the regulations govern the legal relations between the cooperative and its members such as organization, activities, and the rights and obligations of the cooperative, which are local statutes binding on the cooperative and its members, and approval of the competent authority on the regulations of the cooperative is a system recognized as part of the supervisory authority over the cooperative in order to guarantee the public interest and integrity of the organization and operation of the cooperative and to coordinate mutual interests between the cooperative and its members, it should be viewed that the cooperative imposes an obligation on the cooperative members in principle in relation to the operation and management of the cooperative in internal relations between the cooperative and its members. Therefore, if the operating organization of the joint prevention facilities is a cooperative, the "Article 14 of the regulations set forth the allocation ratio of discharge dues for each workplace" can be the basis for imposing discharge dues between the imposing administrative agency and the business operator. Thus, it cannot be deemed that the provisions on the regulations of the Korea Federation impose an obligation on the cooperative members (see, e.g., Supreme Court Decision 2012Du131421, Feb. 14, 20192).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. According to Articles 34(1)2 and 35(1) of the Articles of Incorporation (amended by Act No. 1139, Oct. 16, 2013) of a cooperative (hereinafter referred to as the “cooperative”) (hereinafter referred to as the “instant cooperative”), the “establishment, amendment, or abolition of a covenant” is subject to the resolution of a general meeting, and the general meeting is opened with the attendance of the majority of all the union members, unless otherwise expressly provided by statutes, the articles of incorporation, or the bylaws.

B. On August 31, 2012, the instant cooperative opened an extraordinary general meeting, and passed the instant agenda with the consent of 30 companies from among 40 companies among the 43 companies among the members of the cooperative, on the following grounds: (a) the provision that adds emission dues, etc. to the category of "charges to be borne by the members" (Article 10(7)); and (b) the provision that sets the allocation standards for the emission dues, etc. when it is impossible to measure the concentration of discharged wastewater and water pollution substances at each business establishment (Article 12(7); and (c) the provision that sets the allocation standards for the emission dues, etc. when it is impossible to measure the concentration of discharged water and water pollution substances

C. The instant provision provides for the apportionment of heavy metals, such as mercury, among the allocation of effluents, when it is impossible to measure the quantity of wastewater discharged and the concentration of water pollutants, as to the allocation of heavy metals, such as mercury, among the allocation of effluents when it is impossible to measure the quantity of wastewater discharged and the concentration of water pollutants, the allocation ratio is as follows: ① Discharge dues are borne by the discharging company (No. 1); ② the calculation of the operating cost ratio by chroman (hereinafter “the instant study”) on February 2012; and the calculation of the operating cost ratio by chroin (No. 4) is based on the percentage ratio of the remaining companies (No. 4).

D. The instant research service was voluntarily commissioned by the instant association. Of the leather manufacturers, H professors, who provided the service, designated K, Processed Co., Ltd., Ltd. using raw volume as their representative company, and set the average of the result of collecting samples over three times in each case, and set the amount of chrop (mg/liter) per unit by the same type of business. The amount of total pollutants calculated by applying the volume of pollutants by each place of business, and set the ratio of the ratio of the amount of effluent charges to the chrop (chg/liter) in proportion thereto.

E. On October 4, 2012, the instant association submitted the instant provision to the Defendant, and the Defendant calculated the total amount of excess discharge dues for the instant common facilities in total at KRW 17,317,908,08,080, and issued a disposition imposing excess discharge dues (hereinafter “instant disposition”) by allocating it to the Plaintiff according to the instant provision on allocation, as stipulated in the instant provision on allocation.

F. Since then, the instant association applied for approval to the Korea Federation of Small and Medium Business in accordance with the establishment of the instant sharing provision, but on January 21, 2013, the part of subparagraph 4, which set the share ratio of chinite among the instant sharing provision, did not obtain approval, and obtained approval only for the remaining parts.

3. A. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the instant disposition imposing the Plaintiff the excess discharge dues pursuant to the instant allocation provision is lawful. The reasons are as follows.

1) The instant provision on allocation was passed by the general meeting of the association meeting of this case, meeting the quorum set forth in the articles of association, and there is no other material to deem that there is any defect in the process of resolution. Meanwhile, the instant provision on allocation does not fall under the regulations stipulating “other matters to impose obligations on members” under Article 30(1)3 of the Small and Medium Enterprise Cooperatives Act, and thus, it does not affect its validity even if it was not approved by the president of

2) In light of the fact that: (a) the association of this case set the criteria for the supply of services to experts for the purpose of setting the criteria for allocation of emission dues through a resolution of the general meeting; (b) its procedure and process are difficult to deem unlawful; and (c) the method of selecting each representative company for each category of business manufacturing leather and measuring the amount of mercury emission is reasonable; and (d) the process of collecting samples and the analysis of samples conducted while conducting the research of this case does not seem to have any error in itself, it is difficult to readily conclude that the part of the results of this case’s research is considerably unreasonable.

B. Nevertheless, the lower court determined that the part of the Disposition in this case’s Disposition is unlawful on the erroneous premise that the instant provision constitutes “other matters to impose obligations on members” stipulated in Article 30(1)3 of the Small and Medium Enterprise Cooperatives Act and the establishment thereof requires approval of the president of the Korea Federation of Small and Medium Business. In so doing, the lower court erred by misapprehending the legal doctrine on the approval of the regulations in the Small and Medium Enterprise Cooperatives Act and the determination of illegality of the criteria for imposing excess discharge dues in the joint prevention facilities, etc., on the grounds that the said provision did not take effect, and that the said provision cannot be deemed reasonable.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.