[1] In a case where the act of entrusting the disposal of construction waste by an unauthorized disposal company with the nature of continuous crime continues even after the establishment of Article 63 subparagraph 1-2 of the former Construction Waste Recycling Promotion Act, which is a penal provision, whether the above provision applies (affirmative)

[2] The case holding that Article 16 (1) of the former Construction Waste Recycling Promotion Act does not constitute a mistake in a law with a justifiable reason merely because it received a question reply from the Ministry of Environment that does not directly provide material to determine the violation

[3] Whether Article 13(1) of the former Act on the Promotion of Recycling of Construction Wastes, which delegates the specific contents and scope of the construction waste disposal standards to the Presidential Decree, and Article 5(2) [Attached Table 1] of the Enforcement Rule of the same Act, which again delegates the limitation of the storage period to the former Enforcement Decree, deviates from the limitation of the principle of legality or the delegated legislation (negative)

[1] Articles 16(1) and 63 subparag. 1-2 of the former Construction Waste Recycling Promotion Act (amended by Act No. 8369 of Apr. 11, 2007) / [2] Article 16(1) of the former Construction Waste Recycling Promotion Act (amended by Act No. 8369 of Apr. 11, 2007); Article 16 of the Criminal Act / [3] Article 13(1) of the former Construction Waste Recycling Promotion Act; Article 9 of the former Enforcement Decree of the Construction Waste Recycling Promotion Act (amended by Presidential Decree No. 19828 of Jan. 5, 2007); Article 5(2) [Attachment 1] [Attachment 5(2)] of the former Enforcement Rule of the Construction Waste Recycling Promotion Act (amended by Ordinance of the Ministry of Environment No. 2266 of Jan. 9, 2007

Defendant et al.

Defendants

Law Firm Barun et al.

Seoul Central District Court Decision 2007No4064 Decided September 11, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

The lower court acknowledged the facts as indicated in its reasoning based on its employment evidence, and determined that the Korea National Housing Corporation, after hiring vehicle scrapers and employing drivers, made an external form of self-processing them, but in substance, it cannot be deemed that the removal company that did not obtain a construction waste disposal business license, did not perform its supervision and supervision as it did not directly dispose of construction waste under its responsibility and direction, and that it still entrusted the disposal of construction waste to the said removal company.

Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding and judgment of the court below as just, and there are no errors in the misapprehension of legal principles as to the meaning of the consignment disposal under Article 16 (1) of the former Construction Waste Recycling Promotion Act (amended by Act No. 8369 of Apr. 11, 2007; hereinafter referred to as the "Act") or in the misconception of facts due to violation of the rules of evidence, as otherwise alleged in the ground of appeal.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below determined that Article 63 subparag. 1-2 of the Act prohibited disposal of construction waste by entrusting the disposal to an enterprise with which construction waste was not permitted, and that the above provision of the Act applies to the entrusted disposal of construction waste by an unauthorized disposal enterprise, as long as the act of construction waste disposal by the Korea National Housing Corporation and a removal enterprise was continuously conducted before the establishment of the above provision, which is a penal provision, even though the contract for construction waste disposal by the Korea National Housing Corporation and the removal enterprise, is not a so-called immediate crime that has been completed due to the conclusion of the contract for the entrusted disposal, but a continuous crime is not completed due to the continuous act of construction waste disposal in accordance with the contract for construction waste disposal pursuant to the above provision.

Upon examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable, and there is no violation of the legal principles as to continuing crimes or the principle of prohibition of retroactive effect of penal law as otherwise alleged in the ground of appeal.

3. On the third ground for appeal

Since Articles 16(1) and 27(1) of the Act differ in the purpose and intent of regulations, even if approval for installation of a construction waste disposal facility under Article 27(1) of the Act has been obtained, or construction waste disposal is limited to the construction site in question pursuant to Article 27(2) of the Act, the application of Article 16(1) of the Act does not preclude even if the disposal of construction waste is limited to the construction site in question.

The court below's rejection of the defendants' arguments that cannot be applied to this case under Article 16 (1) of the Act on the grounds stated in its holding is just and there are no errors in the misapprehension of legal principles as to the scope of application under Articles 16 (1) and 27 (1) of the Act, as otherwise alleged in the ground of appeal.

4. On the fourth ground for appeal

Article 16 of the Criminal Act provides that an act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that his act constitutes a crime, but it does not constitute a crime under the Acts and subordinate statutes in his own special circumstances, and if there are justifiable grounds for misunderstanding, it shall not be punishable. Whether there exists a justifiable reason shall be determined depending on whether the act of misunderstanding is not aware of the illegality of his own act as a result of misunderstanding, even though it was possible to recognize the illegality of his act if the act was done with his intellectual ability, and there was a chance that the act of misunderstanding could have been aware of the illegality of his act, and the degree of efforts necessary for recognizing the illegality should be determined differently depending on the situation of the act of misunderstanding, the individual's awareness ability, and the social group to which the actor belongs (see Supreme Court Decision 2005Do3717, Mar. 24, 2006, etc.).

According to the records, where a person who discharges construction waste intends to directly install and operate a construction waste disposal facility in the construction site and recycle construction waste, pursuant to Article 27(1) of the Act, the scope of the construction waste disposal facility subject to the approval by the competent authority, and it does not constitute a direct material to determine the scope of self-treatment under Article 16(1) of the Act. Thus, even if the above defendant mispers that his act does not constitute a crime due to the above inquiry, it is merely erroneous interpretation of the above inquiry that he did not constitute a crime, and thus, it cannot be viewed as a mistake of law with legitimate grounds, even if it is considered otherwise in the grounds of appeal, such as the fact that the defendant obtained the approval of the installation of a construction waste disposal facility from the competent authority.

In addition, the above defendant's act was low in the course of performing his duties, and it is difficult to view it as a justifiable act due to his duties, since it is not based on a legitimate act, and according to the facts established by the court below, it is reasonable to view the above defendant's act as an intentional act, and it cannot be deemed that the above defendant's act caused misconception as to whether it constitutes the element of a crime, which is an act of "entrusted disposal."

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to intentional act or mistake of law or legitimate act, as otherwise alleged in the ground of appeal.

5. On the fifth ground for appeal

Articles 63 subparag. 1-2 and 16(1) of the Act provide that the value of construction waste illegally disposed of shall not be aggravated depending on the value of the construction waste as part of the elements of a crime. Thus, the ground of appeal on the purport that the court below erred in calculating the value of construction waste illegally disposed of shall not be deemed a legitimate ground of appeal.

6. On the sixth ground for appeal

Since it is practically impossible to provide for all laws and regulations related to criminal punishment without exception due to the complex and diversification of social phenomenon, the limit of professional and technical ability of the National Assembly, and the limit of professional and technological ability to adapt to time, it is not only impossible in fact to provide for all laws and regulations related to criminal punishment by law within a formal meaning without exception, and it is not appropriate to do so. Thus, only in the case where there is an urgent need or inevitable circumstance in which it is impossible to provide for punishment in advance by law, the delegation legislation is allowed under the premise that the act subject to punishment can be predicted in terms of the elements of punishment, and in the case of punishment, the delegated legislation is clearly defined (see Supreme Court Decision 200Do1007, Oct. 27, 200, etc.).

Article 13(1) of the Act provides that "any person who intends to discharge, collect, transport, store, or perform interim disposal of construction waste shall do so according to the standards and methods prescribed by Presidential Decree." Article 9(1) of the Enforcement Decree of the Act (amended by Presidential Decree No. 19828, Jan. 5, 2007; hereinafter "Enforcement Decree") delegates the standards and methods for the collection, transportation, storage, interim disposal of construction waste to the Enforcement Rule of the same Act. Article 13(2) of the Act provides that the standards and methods for the collection, transportation, interim disposal of construction waste shall be replaced by the standards and methods prescribed by Presidential Decree. Since the types of construction waste are diverse or technical and specialized, it is inevitable to determine the Minister of Environment to take charge of such affairs in the legislative technology, Article 13(1) of the Act provides that a person who intends to discharge, transport, store, or perform interim disposal of construction waste shall be clearly defined as a person who intends to dispose of construction waste, and it shall be clearly defined that construction waste disposal business is subject to punishment in light of the purpose and scope of each provision.

On the other hand, a delegation order can be determined when there exists an individual delegation that sets a specific scope in the law or upper level order. Here, the specific scope of delegation varies depending on the type and character of the subject to regulation, and thus, uniform standards cannot be set. However, in a case where the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the pertinent law, anyone can predict the outline of the contents to be stipulated in the delegation order from the pertinent law. In this case, the predictability of the delegation clause should not be determined with only one of the pertinent delegation clause, but the overall structure, purport, and purpose of the relevant delegation clause, the relevant delegation clause's form, content, and relevant law must be determined systematically and systematically, and the specific and individual review should be conducted according to the nature of each regulation subject (see Supreme Court Decision 2003Du7606, Jul. 22, 2004).

As seen earlier, Article 9(1) of the Enforcement Decree of the Act provides that Article 13(1) of the Act provides for the basic standards and methods for the collection, transportation, storage, and interim disposal of construction waste; Article 13(2) of the Act further delegates the specific standards and methods to the Enforcement Rule; accordingly, Article 5(2) [Attachment 1] of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Environment No. 226, Jan. 9, 2007; hereinafter “Enforcement Rule”) provides that “the discharger shall not keep construction waste generated from his/her place of business in excess of 90 days from the date of commencement of storage.” Since it is evident that the restriction on the period of storage has set the criteria or methods for the storage of construction waste, even if the upper-tier statute did not directly stipulate the delegation of the restriction on the period of storage, it cannot be deemed that the above provision goes beyond the limit of delegated legislation.

For reasons indicated in its holding, the court below is just in holding that the above provision of the Enforcement Rule cannot be deemed null and void because it goes beyond the limit of delegated legislation, and there is no violation of the principle of no punishment without the law and the misapprehension of the legal principles as to the limitation of delegated legislation, as

7. On the seventh ground for appeal

Article 5 (2) [Attachment 1] of the Enforcement Rule does not exclude waste concrete subject to recycling in limiting the period of storage of construction waste materials to 90 days, and thus, the argument in the grounds of appeal that the above Enforcement Rule does not apply to waste concrete subject to recycling is not acceptable.

In addition, based on Article 2(b) of the Enforcement Decree of the Wastes Control Act and Article 11(b) of the Enforcement Decree, it cannot be deemed that there was no intention or a legitimate ground for legal mistake, even if the construction waste under the above Enforcement Rule which differs from the purport of the former Enforcement Rule is limited to non-recyclinged

On the other hand, the defendant's act of keeping construction waste for more than 90 days is only low in the course of performing his/her duties, and it is difficult to view it as a legitimate act due to his/her duties as a legitimate act.

The decision of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to the scope of application under Article 5 (2) [Attachment Table 1] of the Enforcement Rule, or in the misapprehension of legal principles as to mistake of law, or legitimate act, as otherwise alleged in the

8. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)