2016Guhap67462 Other revocation of revocation of the imposition of charges

J. S. Co.

The Minister of Environment

February 21, 2017

March 9, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of KRW 9,422,010 of the allotted Charge for Asbestos Injury Relief against the Plaintiff on March 30, 2016 is revoked.

1. Details of the disposition;

A. On October 17, 1969, the Plaintiff was established as the Japanese chemical and industrial company, and was converted into the Japanese chemical and industrial company on February 23, 197, and was changed to the trade name as of December 29, 199. On October 1969, the Plaintiff constructed a new factory in Busan around December 26, 1969 and manufactured asbestos products, such as asbestos death and asbestospos, etc., from December 1969, and returned the permission to manufacture and use asbestos as of January 31, 2007, after closing the factory around March 26, 1990.

B. The Defendant imposed a special contribution for asbestos injury relief on the Plaintiff every quarter from 2011 on the ground that the sum of asbestos permitted to manufacture or use pursuant to Article 33 of the Asbestos Injury Relief Act (hereinafter “the Act”) effective January 1, 201 constituted “business owner who establishes and operates a place of business with a total of 10,00 tons or more” and imposed a special contribution for asbestos injury relief on the Plaintiff every quarter from March 30, 2016, and imposed a special contribution of KRW 9,422,010 on the first quarter of January 30, 2016 (hereinafter “instant disposition”). [Grounds for recognition] The fact that no dispute is raised, evidence No. 1, Eul’s evidence No. 1 (including the serial number), and the purport of the entire pleadings as a whole.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The legal provision of this case is unconstitutional because it violates the principle of excessive prohibition and the principle of equality as follows. Therefore, the disposition of this case based on the legal provision of this case is also unlawful.

1) Violation of the principle of excessive prohibition

The volume of asbestos handled cannot be a legitimate standard for determining whether to apply the special contribution rate, and the place of business that bears special contributions pursuant to the legal provisions of this case is less than five nationwide and is not appropriate as a means for securing finances. The legal provisions of this case do not stipulate the completion period of the special contribution, thereby violating the minimum requirements for damage, and failing to meet the balance of the legal interests of excessively high, which are infringed on for the public interest, thereby infringing the Plaintiff’s property rights.

2) In violation of the principle of equality, the legal provision of this case differs depending on whether the business owner is a business owner who operates a place of business, the aggregate amount of asbestos permitted for manufacture or use of which exceeds 10,000 tons. Since the distance between the place of business and the housing area is an important factor for the occurrence of asbestos victims, the legal provision of this case is in violation of the principle of equality, since it gives discriminatory treatment to some business owners on a arbitrary basis without reasonable grounds.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Asbestos characteristics and asbestos diseases and regulated asbestos were continuously reported to academic circles since the 1950s to the nearest 1960s. In Korea, studies on the harmful environment, etc. in asbestos treatment places have started since the half of the 1980s on asbestos treatment places, and there have been no later a long-term locking period (the average of five to thirty years) may cause fatal diseases, such as waste cancer, asbestosis, heavy types of disease, etc., even though there has been no later a long-term locking period (the average of five to thirty years), and the case of the relationship between non-professional and household exposure, non-professional and environmental exposure, waste cancer, and malignant Type, etc., with the exception of the occupational exposure to asbestos, has been continuously reported to the academic community during the 200s to the nearest 1950s to the nearest 1960s. In principle, asbestos content products included in a specific chemical prescribed in the Enforcement Rule of the Occupational Safety and Health Act on October 29, 1982 were prohibited from being used by weight or 2010 products.

2) As the legislative intent of the Asbestos Injury Relief Act increases damage caused by asbestos in the Republic of Korea, workers are entitled to industrial accident compensation pursuant to the Industrial Accident Compensation Report Act, but health victims due to environmental exposure, including residents living in the mine or surrounding asbestos factories, were unable to receive compensation and support so as to make it difficult to identify specific persons. Accordingly, the State and local governments directly or indirectly sharing benefits from the use of asbestos with respect to a person who suffered health damage but is not entitled to compensation due to asbestos but has directly or indirectly shared benefits from the use of asbestos, and the industry were also enacted on March 22, 2010 and enforced on January 1, 2011. In light of this purport, asbestos injury relief contributions can be deemed as having the character of quasi-tax for the public interest.

3) A majority of the lawsuits filed by asbestos victims who had worked in an asbestos plant operated by the Plaintiff in the claim for damages against the Plaintiff, and who had resided in the vicinity of the aforementioned plant, such as waste cancer, asbestosis, and heavy dysium, have been finally determined or currently pending. In the above lawsuits, the Plaintiff was liable for damages on the ground that asbestos victims suffered from diseases, such as waste cancer, asbestosis, and heavy dysium, and asbestos victims filed against the Plaintiff were not properly installed or operated within the asbestos plant, and that asbestos was scattered around the factory and caused waste cancer, bad dysium, etc. to workers and residents.

4) Deduction of money received under the Asbestos Injury Relief Act

In the above lawsuit for damages, the amount of remedial benefits received by asbestos victims or their bereaved family members pursuant to the Asbestos Injury Relief Act was deducted from the amount of damages that the plaintiff should pay to asbestos victims. [Grounds for recognition] The fact that there is no dispute, each entry in the evidence Nos. 1 and 2 (including each number), and the purport of the whole pleadings.

D. Determination

1) Whether the legal provisions of this case violate the excessive prohibition principle

A) Special contributions collected pursuant to Article 2 of the Act on the Management of Charges are to bear part of expenses incurred in the business of a person in a special relationship with a specific public project called relief for asbestos victims. It constitutes charges under Article 2 of the Framework Act on the Management of Charges. This is justifiable for the State, local governments, and industry that shared benefits from the use of asbestos to a person who suffered health harm caused by asbestos but fails to receive compensation as seen earlier, together with financial resources to pay remedial benefits.

B) In addition, special contributions under Article 31 of the Asbestos Injury Relief Act shall be made in accordance with Article 31 of the Act.

Unlike the general contributions borne by general employers, it is imposed on the business operators operating places of business with a total sum of at least 10,00 tons of asbestos permitted for manufacture and use. Since it can be seen that many asbestos permitted for manufacture and use have obtained profits from the use of asbestos, they have ‘special close relationship' with regard to the public tasks called relief for asbestos victims compared to the general business operators. Therefore, it is an appropriate means to facilitate the realization of the above legislative purpose.

C) As seen earlier, asbestos victims are the causes of the outbreak of asbestos in the process of manufacturing and using asbestos in a number of years or more. As such, companies manufacturing and using a large quantity of asbestos at that time cannot be exempted from liability solely on the ground that they currently do not manufacture or use asbestos, and there is no other organization that is particularly closely related to the public task, such as remedy for asbestos victims. Moreover, it is difficult to set the closing date of the special contribution as it is difficult to determine the closing date of the payment of asbestos as it is difficult to properly predict the locking period from the exposure to asbestos to the outbreak date. As such, it is difficult to set forth in Articles 31 and 32 of the Act on the Relief of Asbestos Injuries for business entities manufacturing or using asbestos, and from around 2009 to from around 2012, the total amount of the allotted contributions was prohibited from being imposed every year, and it is also possible to limit the amount of the allotted contributions to be reduced every year to ensure that the asbestos victims can not be paid for a considerable period of time.

Considering these circumstances, it is difficult to deem that the legal provision of this case violated the minimum principle of damage.

D) The public interest, which is to secure funds for the stable operation of the fund for the relief of asbestos victims to be achieved through the instant legal provisions, cannot be said to be less than the property rights of individuals limited according to the special contributions imposed pursuant to the instant legal provisions. The Plaintiff, a company that manufactures and uses large amounts of asbestos in the past, such as the Plaintiff, has earned a considerable profit therefrom, as well as an enterprise that manufactures and uses large amounts of asbestos in the past, and in accordance with the Asbestos Injury Relief Act, the amount of damages the said

Considering that the amount of remedial benefits paid to asbestos victims can be deducted from the Asbestos Injury Relief Fund created, the legal provision of this case also recognizes a balance of legal interests.

E) Therefore, the instant legal provision does not contravene the principle of excessive prohibition.

2) Whether the legal provisions of this case violate the principle of equality

As seen earlier, the application of special contributions depending on whether the aggregate amount of asbestos permitted to manufacture or use under the legal provision of this case exceeds 10,000 tons is different depending on whether the production or use of asbestos was made monthly, and the group of business owners recognized as closely related to the special public task, such as the relief of asbestos victims, is treated differently from the group of general business owners, which are essentially different in the production and use of asbestos, and cannot be deemed as discrimination without reasonable grounds.

The Plaintiff asserts to the effect that the distance between workplace and housing area is more important in the occurrence of asbestos victims rather than the quantity of asbestos handled at the workplace, and thus, it should be determined based on the application of special contributions. However, the degree of scattering asbestos not only is the distance, but also vary depending on the size, handling quantity, handling period, intensive facilities and ventilation conditions of asbestos factories, and wind direction, so it is not possible to determine the degree affecting the occurrence of asbestos victims merely depending on the distance between the housing area and the housing area, and it is difficult to evaluate it in an objective numerical value in light of all the above circumstances. Rather, it is objective to determine the application of special contributions based on the manufacturing and use of asbestos, such as the legal provision of this case, considering the degree of profit gained by the business owners by manufacturing and using asbestos, and thus, it can be a reasonable ground for discrimination.

Therefore, the plaintiff's assertion that the legal provision of this case violates the principle of equality is without merit.

E. Sub-committee

Ultimately, since the legal provision of this case cannot be deemed as unconstitutional, it did not err by misapprehending the legal provision of this case on the legal basis of the legal provision of this case. The plaintiff's assertion disputing this is without merit.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judgment of the presiding judge;

Judges Kim Gin-won

Judges Choi Jae-in