2015Guhap2151 Revocation of Disposition of Imposing water supply construction cost

A person shall be appointed.

A person shall be appointed.

August 25, 2016

September 22, 2016

1. On May 14, 2015, the Defendant revoked the disposition of imposition of each facility contribution of KRW 29,587,200 for the Plaintiff on May 14, 2015 to the Plaintiff, and KRW 160,80 for the complex 10 for the Jeonbuk Innovation City.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. On April 13, 2015, the Plaintiff, a project implementer for an innovation city construction and support following the relocation of public agencies, created a housing site in the innovation city development project district (hereinafter referred to as the “Gu of this case”) and applied for water supply construction works to the Defendant on April 13, 2015 in the process of constructing an innovation city A - 9BL apartment in the Jeonbuk-gun, Jeonbuk-gun.

B. Accordingly, on May 14, 2015, the Defendant approved the above water supply construction, issued a disposition that imposes charges for each facility of KRW 29,587,200 on the 9 block of Jeonbuk innovation city, KRW 160,80 on the 10 complex of Jeonbuk innovation city, and KRW 160,80 on the 10 complex of Jeonbuk innovation city (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an administrative appeal seeking revocation of the instant disposition with the Jeollabuk-do Administrative Appeals Commission, but the Jeollabuk-do Administrative Appeals Commission dismissed the Plaintiff’s claim on September 17, 2015.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 7, and the whole pleading 2. The legality of the disposition of this case

A. The plaintiff's assertion

1) The allegation that the imposition of facility contributions under Article 12 of the Ordinance of this case, which is null and void due to the lack of statutory delegation, is the above Act.

Article 138 of the Local Autonomy Act, which asserts that the Defendant is the basic law of Article 12 of the Ordinance on Facility Contributions, is a general law, while Articles 70 and 71 of the Water Supply and Waterworks Installation Act, which are a special law, provides that in principle, a waterworks business operator shall bear expenses incurred in the installation of waterworks, but a waterworks business operator shall bear expenses incurred in the construction of waterworks only to a person (including a person who installed facilities using a large number of tap water, such as a housing complex and industrial facility, and has provided a cause for the construction or extension of waterworks facilities) who has provided a cause for the construction of waterworks. Article 12 of the Ordinance of this case, which provides that a water supply business operator shall bear expenses incurred in the construction of waterworks, is null and void because it enacted matters not delegated by the Water Supply and Waterworks Installation Act, which are the upper law. The disposition of this case under Article 12 of the invalid Ordinance

2) The assertion that the imposition of facility contributions under Article 12 of the Ordinance of this case, which is null and void due to a violation of the statute, is unlawful.

Article 138 of the Local Autonomy Act, which is not the Water Supply and Waterworks Installation Act, provides that a local government may collect contributions from a person who gains special benefits from the establishment of the property or public facilities within the scope of his/her profits. Article 12 of the Ordinance of this case provides that a person who receives special benefits from the residents of the Republic of Korea may impose contributions on the plaintiff who does not fall under the "person who receives special benefits from the residents of the Republic of Korea" so it goes beyond the scope of delegation under Article 138 of the Local Autonomy Act, which is the higher law, and thus is null and void. Accordingly, the disposition of this case based on Article 12 of the invalid Ordinance is unlawful.

3) The allegation that the imposition of facility contributions under Article 12 of the Ordinance of this case, which constitutes double imposition, is invalid, is the above Act.

Since the purpose of imposing charges provided for in Article 71 of the Water Supply and Waterworks Installation Act and charges for the apportionment of facilities provided for in Article 12 of the Ordinance of this case is the same appropriation of financial resources related to waterworks facilities, it is illegal to impose charges for the installation of waterworks again on a person who has already paid charges for the installation of waterworks. Article 12 of the Ordinance of this case is null and void due to double imposition of charges for water supply, etc., and the disposition of this case based on Article 12 of the Ordinance null and void is illegal.

4) The allegation that the imposition of facility contributions in this case is unlawful even if the facility contributions imposed pursuant to Article 12 of the Ordinance in fact fall under the amount borne by the responsible person.

Even if the facility contributions imposed pursuant to Article 12 of the Ordinance of this case fall under the actual amount borne by the burden-bearing, the plaintiff does not fall under the requirements for imposing the burden-bearing amount under Article 71 of the Do Act because it did not provide the cause of new installation or extension of the water supply capacity of the waterworks business operator due to the construction of the apartment of this case, and it is unlawful to impose the charge-bearing amount again on the person who has already paid the charge-bearing amount for the installation of the waterworks. Since it is the same as the payment of all the charge-bearing amount by directly completing the construction of the waterworks in this case and the payment of all the charge-bearing amount is the same as the payment of the charge-bearing amount within the water supply facility in this case, the defendant who did not have paid any

In addition, where a house is constructed on the housing complex after a housing complex was created, a local government, which is a waterworks business operator, can impose an amount borne by a complex development business operator only, and where no additional water supply facility, other than the cost of water supply, is installed in the process of constructing a new house after the construction of a water supply facility, which is a infrastructure, through the construction of a complex, the local government, which is a waterworks business operator, shall not impose a cause-based contribution on the housing constructor. The defendant issued the disposition of this case against the plaintiff who does not support the payment of the

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) As to whether a facility contribution was imposed pursuant to Article 12 of the Ordinance of this case, which was null and void due to the lack of statutory delegation

According to Article 22 of the Local Autonomy Act, local governments may enact municipal ordinances under the jurisdiction of the local governments within the scope of statutes, but when determining matters concerning restrictions on the rights of residents, imposition of obligations on residents, or penal provisions, they shall have the authority delegated by the Act. Accordingly, it shall be examined as to whether Article 12 of the Ordinance concerning the imposition of facility contributions was enacted upon delegation by the Act.

Article 138 of the Local Autonomy Act provides that a local government may collect contributions from a person benefiting from the establishment of a local government's property or public facility within the scope of his/her benefit, and Article 139 (1) provides that "the matters concerning the collection of contributions shall be prescribed by municipal ordinance."

Meanwhile, Article 12 of the instant Ordinance provides that a person who intends to construct or remodel a private water supply system and a private water supply system (limited to the expansion of the area of a water supply system) shall pay the facility contributions along with the construction cost. Such facility contributions are characterized as a beneficiary’s contribution to a person who receives benefits from the existing water supply system through the installation of exclusive water supply system or the extension of the diameter of the water supply system, and as alleged by the Defendant, they shall be based on Articles 138 and 139(1) of the Local Autonomy Act (see Supreme Court en banc Decision 2003Du8128, Jun. 22, 2006).

Therefore, this part of the Plaintiff’s assertion that the instant disposition was unlawful since it was based on Article 12 of the Ordinance which was null and void due to the lack of statutory delegation.

2) The assertion that the imposition of facility contributions under Article 12 of the Ordinance of this case, which is null and void due to a violation of the statute, is unlawful.

A) The person liable to pay facility contributions: Whether Article 12 of the Ordinance of this case is illegal

(1) Relevant legal principles

In cases where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation shall also be made by comprehensively examining the legislative purpose and contents of the relevant statutory provision, the structure of the provision, and the relationship with other provisions. In addition, whether the delegation provision itself clearly provides for the limits of delegation by using terms with which his/her outstanding details can be accurately known, or whether the delegation provision exceeds the limits of its literal meaning, or whether a new legislation was made beyond the stage of concreteizing the delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the scope of the terms used in the delegation provision (see Supreme Court Decision 2009Du17797, Apr. 29, 2010).

(2) Interpretation of relevant provisions

Article 12 of the Local Autonomy Act provides that "a person who has an address within the jurisdiction of a local government with respect to the qualification of "resident".

Meanwhile, Article 6 (1) of the Ordinance of this case provides that "a person who intends to perform water supply construction works shall submit an application for water supply construction to the head of the Gun in advance and obtain approval therefor." Article 12 (1) of the Ordinance provides that "a person who intends to perform water supply construction works for the purpose of the installation or remodeling of all water supply systems and private water supply systems (limited to the extension of the area of the water supply pipes) shall pay the cost of water supply construction at the same time when he pays the cost of water supply construction, and the attached Table 1 provides that the amount of the cost of water supply facilities at the time of paying the cost of water supply construction according to the diameter of the measuring instruments.

In full view of the relevant provisions based on the aforementioned relevant legal principles, a payer of facility contributions under Article 138 of the Local Autonomy Act and Article 12 of this Ordinance shall be construed only as a person who receives special benefits from existing water supply facilities by filing a new application for water supply construction for the purpose of water supply facilities, which is a resident of the relevant local government, as a resident of the relevant local government. However, Article 12 of the instant Ordinance can be construed as a payer of facility contributions on the ground that he/she applied for new water supply even in cases where he/she is not particularly a person who receives special benefits from existing water supply facilities. Thus, within such scope, it shall be construed as a violation of the above intent and scope under Article 138 of the Local Autonomy Act.

Therefore, the instant disposition based on the premise that the Plaintiff is the main body of paying facility contributions, which is not only the residents of the Republic of Korea but also does not fall under those who receive special benefits from existing waterworks, is in violation of Article 138 of the Local Autonomy Act as the mother corporation, and is unlawful without any need to examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges - Judges

Judges Han Jin-hee

Judges Kang Jae-chul

【Related Acts and Subordinate Statutes】

Water Supply and Waterworks Installation

Article 38 (Provisions) (1) Any general waterworks business operator shall obtain approval from the authorizing agency before commencing the supply of tap water by prescribing the expenses for the construction of tap water rates, the expenses for water supply facilities and other terms and conditions for the supply of tap water, as prescribed by Presidential Decree, and the same shall apply to any light that intends to modify the approved matters: Provided, That where the waterworks business operator is a local government, it shall be prescribed by Municipal Ordinance of the relevant local government.

(2) Any general waterworks business operator and any authorizing agency under the main sentence of paragraph (1) shall ensure that all expenses incurred in installing the relevant waterworks may be recovered by the service fees for tap water in determining the terms and conditions for the supply of tap water or approving therefor.

Article 70 (Bearing Expenses Incurred in Installing Waterworks) The expenses incurred in installing waterworks (excluding water supply facilities) shall be borne by a waterworks business operator.

(1) A waterworks business operator may require a person who has incurred expenses for the construction of waterworks (including a person who has caused the installation or extension, etc. of waterworks by installing facilities using many tap water, such as housing complexes and industrial facilities, etc.), or a person who has operated a business or performs an act that damages waterworks, to fully or partially bear expenses incurred in the construction of the relevant waterworks, the maintenance of waterworks facilities, or the prevention of damage to waterworks.

(2) Standards for the calculation and collection of charges under paragraph (1) and other necessary matters shall be determined by Presidential Decree.

(3) Charges under paragraph (1) may be used only for expenses incurred by the Corporation, such as the creation, extension, relocation, remodeling, and renovation of waterworks.

【Enforcement Decree of the Water Supply and Waterworks Installation

Article 65 (Amount Borne by Responsible Persons) (1) Where a waterworks business operator intends to impose an amount borne by borne by a person (including a person who has installed facilities using a large number of tap water, such as a housing complex and industrial facility, and has caused new installation, expansion, etc. of waterworks facilities) who has incurred expenses incurred in performing waterworks works pursuant to Article 71 (1) of the Act, he/she shall consult in advance with the liable person on the calculation basis of an amount borne by responsible for borne by a person and method of payment, etc. under Article 71 (2) of the Act. In such cases, where no consultation is held, a waterworks business operator may determine

(2) Where a waterworks business operator intends to impose charges on an amount borne by a person responsible for water works, etc. pursuant to paragraph (1), he/she shall calculate the expenses incurred in water works, etc. and notify the person who has paid charges of the amount, payment deadline

(3) The amount borne by burden-bearing entities under paragraph (1) shall be the sum of the following expenses:

1. Expenses incurred in newly installing and expanding waterworks;

2. Construction expenses incurred in restoring facilities to their original state;

3. The amount of money equivalent to service charges for tap water which has become unusable due to washing, etc. of waterworks;

4. Expenses for water supply teas due to the fractional suspension (shortages);

5. Expenses for road restoration and the prevention of road ices;

6. Expenses for vehicles used and personnel mobilized for restoration works;

7. Other expenses, etc. for public relations.

(4) Where a waterworks business operator intends to have a person who runs a business or engages in an act that causes damage to waterworks bear the original charge pursuant to Article 71 (1) of the Act, he/she shall calculate expenses incurred in the water line and maintenance of the waterworks or expenses incurred in installing snows to prevent damage and notify the person who has paid the charge of the amount, payment deadline and place of payment by entering the amount of

(5) The amount borne by burden-bearing entities under paragraph (4) shall be the sum of the following expenses:

1. The amount equivalent to the charge for tap water which has leaked or become unusable due to the damage, etc. to the water services facilities;

(6) Detailed standards necessary for the calculation of expenses under paragraphs (3) and (5) shall be prescribed by municipal ordinance of the relevant local government.

The Ordinance on the Supply of Water Supply of Water in Yiju-Gun (amended by Ordinance of 2459, Mar. 17, 2016)

Article 1 (Purpose) The purpose of this Ordinance is to prescribe matters necessary for the proper interest of water supply, such as the cost of water supply in the Seoul-gun (hereinafter referred to as the "Gun") under Articles 23 and 34 of the Water Supply and Waterworks Installation Act, the division of cost of construction concerning the water supply facilities, and other terms and conditions of supply.

Article 6 (Approval for Water-Supply Works) (1) Any person who intends to perform water-supply works shall submit an application for water supply works under attached Form 1 to the head of the Gun in advance and obtain approval therefor.

Article 11 (Advance Payment of Construction Expenses) (1) Any person who has obtained approval for water supply works shall pay in advance the water supply construction expenses calculated pursuant to Article 10 (3) to the bank designated by the head of a Gun within the designated period: Provided, That this shall not apply to any construction works deemed unnecessary by the head of a Gun for advance payment.

(2) If the advance payment of construction expenses under paragraph (1) is not made by the designated date, it shall be deemed revoked the application for construction.

(3) An advance payment of construction expenses shall be settled after the completion of construction, and any excess or excess thereof shall be collected as a penalty after adjustment.

Article 12 (Contribution to Facilities) (1) Any person who intends to implement a water supply work for the purpose of the installation or remodeling of exclusive water supply systems and private water supply systems (limited to the installation of the area of the water supply pipes) shall pay the contributions to facilities in the attached Table 1 at the same time as the construction costs referred to in Article 11.

(2) Where water supply works for multi-family housing with at least two units of multi-family housing have been conducted by installing a separate water meter, or has been inspected by installing measuring instruments for each subparagraph, the contributions to facilities under paragraph (1) shall be calculated separately for each subparagraph.

【Local Autonomy Act

Article 12 (Qualifications for Residents) Any person who has an address in the district of a local government shall be a resident of the local government.

Article 22 (Municipal Ordinances) Any local government may enact its Municipal Ordinance concerning its affairs within the extent of Acts and subordinate statutes: Provided, That when it prescribes matters concerning the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, it shall be delegated by Acts.

required by the corporation.

Article 138 (Contributions) If some residents receive special benefits from the establishment of a local government's property or public facilities, the local government may collect a contribution from the residents benefiting therefrom, to the extent of their benefits.

Article 139 (Municipal Ordinance, etc. on Collection of User Fees) (1) Matters concerning the collection of user fees, fees, or contributions shall be prescribed by Municipal Ordinance: Provided, That where a local government or an institution delegates affairs delegated by the State to a local government or an institution, matters concerning the standard amount prescribed by Presidential Decree, among those concerning autonomous affairs and autonomous affairs, which need to be unified on a national scale, shall be collected, notwithstanding the provisions of other Acts and subordinate statutes, but where a local government intends to collect fees to another amount, the increase or decrease may be

(2) A provision that imposes an administrative fine not exceeding five times the amount exempted from the collection of a user fee, fee, or contribution by fraud or other improper means may be prescribed by municipal ordinance for a person who illegally uses a public facility, or a provision that imposes an administrative fine not exceeding five hundred thousand won on a person who illegally uses a public facility.

(3) Matters concerning the procedures for the imposition, collection, trial, execution, etc. of fines for negligence under paragraph (2) shall be governed by the Act on the Aggravated Punishment of Violations of Public Order. The end of such procedures.