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Ulsan Metropolitan City Head of Ulsan Metropolitan City (Law Firm Maduk, Attorneys Kim Gyeong-young, Counsel for the plaintiff-appellant)

February 27, 2014

1. On July 19, 2013, the Defendant’s disposition imposing KRW 168,531,200 on the Plaintiff on the amount borne by the sewerage burden shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a company that runs the entrusted wastewater treatment business and the wastewater reuse business with the permission for the installation of wastewater discharge facilities under Article 33 of the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter “Water Quality Conservation Act”), and discharges wastewater through its own wastewater discharge facilities. Since around 2008, the Plaintiff has discharged the wastewater first treated from its wastewater discharge facilities through its own wastewater discharge facilities.

B. As the Plaintiff’s final discharge of wastewater under the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter “Water Quality Conservation Act”) through a public sewage treatment plant below the standards for effluent water quality, the Defendant imposed a penalty surcharge only when the wastewater discharge facility’s permissible discharge level exceeds the wastewater discharge quantity reported prior to the point of time ( August 9, 199) that the same applies as the standards for effluent water quality of a public sewage treatment plant (hereinafter “instant disposition”) on the premise that the Plaintiff’s final discharge of wastewater below the standards for effluent water quality by using a public sewage treatment plant, or applied the penalty surcharge retroactively to the increase in the wastewater discharge quantity for the last five years for which the person responsible for the imposition of sewerage charge may be imposed according to the extinctive prescription of the right to collect local taxes under Article 39 of the Framework Act on Local Taxes (hereinafter “instant disposition”). On July

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1-4, 6, and 7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) The distinction between sewage and wastewater

The Defendant imposed a sewerage burden on wastewater discharged by the Plaintiff on the premise that the “wastewater” is included in the “sewage” as stipulated in Article 61(1) of the Sewerage Act. However, the Defendant imposed a sewerage burden on the wastewater discharged by the Plaintiff, as the applicable statutes and regulatory methods vary between the wastewater and the sewage, the Defendant is prohibited from imposing a sewage burden on the “wastewater.”

(ii) Defects in requirements for imposing sewerage burden charges;

According to Article 61(1) of the Sewerage Act and Article 35(1) of the Enforcement Decree of the Sewerage Act, the amount borne by the burden of sewerage shall be imposed on the owner of a building, etc. in cases where the amount of wastewater to be increased by at least 10 cubic meters per day due to new construction, expansion, or alteration of the purpose of use of a building, etc., is at least 10 cubic meters per day. The Plaintiff’s workplace increases wastewater discharged due to the increase of production facilities (mechanic), a change in production process, etc., and thus

3) Violation of the principle of trust protection.

Despite the existence of its own wastewater treatment facilities within the workplace, the Plaintiff has discharged wastewater at the Defendant’s request through the Onnuri sewage treatment plant. The Defendant did not impose the amount borne by the Plaintiff on the wastewater discharged by the Plaintiff until now. Accordingly, the Plaintiff used the public sewage treatment plant to cover various additional costs by trusting the Defendant’s public opinion that no amount borne by the sewage treatment plant will be imposed on the Plaintiff. Therefore, the instant disposition also contravenes the principle of trust protection.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) The Sewerage Act applicable to the instant disposition

A) The amount borne by a sewerage burden is close to the amount of tax imposed in the name of the owner rather than a public charge (see Supreme Court Decision 2001Da37026, Oct. 8, 2002). The imposition of tax shall be governed by the provisions of the law in force at the time of establishment of the liability for tax payment. Even in the case of an amendment of the tax law, the statutes at the time of establishment of the liability for tax payment among the statutes before and after the amendment shall be applied unless there are special circumstances (see Supreme Court Decision 97Nu9253, Oct. 14, 197).

B) Meanwhile, according to Article 61(3) of the Sewerage Act, the calculation standard and collection method of the amount borne by the burden of sewerage and other necessary matters are prescribed by the relevant local government’s ordinance. According to Article 24(1)6(a) of the Ulsan Metropolitan City Ordinance on the Use of Sewerage (hereinafter “the Ordinance on the Use of Sewerage”), the imposition period of the burden of borne by the burden shall be imposed at the time of authorization and permission for new construction, extension, remodeling and reconstruction of buildings, and alteration of the use of buildings. According to the evidence No. 2 of the same Article, the Defendant can acknowledge the fact that the instant disposition was made on the ground of the increase in wastewater amount by May 13, 201 at the Plaintiff’s workplace. Thus, the order applicable to the instant disposition is the former Sewerage Act (amended by Act No. 11915, Jul. 16, 2013; hereinafter “former Enforcement Decree”) and the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 2547, Jul. 27, 2014). 2014>

2) Whether “sewage” under the former Sewerage Act includes “wastewater” under the Water Quality Conservation Act

A) The purpose of the former Sewerage Act is to properly treat sewage and foul waste and to contribute to the sound development of local communities and the improvement of public health and to preserve the water quality of public waters (Article 1) and Article 61(1) of the same Act provides that “public sewerage management authorities may impose, in whole or in part, the owner of a building, etc. (referring to the owner of a building or the construction entity if the construction is in progress) that may discharge sewage of at least the quantity prescribed by Presidential Decree into public waters,” and Article 2 subparag. 1 of the same Act provides that “water quality-quality pollutants shall be mixed with liquid or solid substances for the purpose of preserving water quality (hereinafter referred to as “wastewater”) and that “water quality-quality pollutants shall be excluded from the site of buildings, roads, and other facilities to preserve water quality, and shall also be excluded from the definition of “water-quality pollutants” as prescribed by Ordinance of the Ministry of Environment for the purpose of preserving water quality and preserving water quality of the former Act. Meanwhile, it is defined that the former Water Quality Conservation Act can be widely used for the purpose of preserving and conserving water quality of the Act.

B) In addition, Article 32 of the former Water Quality Conservation Act provides for the permissible discharge standards for water pollutants discharged from wastewater discharge facilities (paragraph (1)), and the Minister of Environment may separately determine and publicly notify the permissible discharge standards for the discharge facilities which discharge all wastewater into wastewater treatment facilities or public sewage treatment facilities through drainage facilities, notwithstanding paragraph (1), only for items which can be properly treated by the relevant wastewater treatment facilities or public sewage treatment facilities (paragraph (8)). In full view of the above provisions, the wastewater discharge business entity shall discharge wastewater within the permissible discharge standards as determined by Ordinance of the Ministry of Environment from wastewater discharge facilities, and where all wastewater flows into wastewater through the wastewater treatment facilities or public sewage treatment facilities through drainage facilities, it shall discharge wastewater within the permissible discharge standards as publicly notified by the Minister of Environment if all wastewater flows into wastewater through the wastewater treatment facilities or public sewage treatment facilities, as defined in the former Sewerage Act.

C) In addition, the primary purpose is to impose the cost on the person who causes environmental pollution, which causes the new construction or extension of the public sewerage (see Supreme Court Decision 2010Du7604, Oct. 11, 2012). The former Water Quality Conservation Act, as long as the wastewater flows into the public sewage treatment plant, is within the permissible discharge standards publicly notified by the Minister of Environment, deeming that it is subject to the imposition of the cost borne by the person responsible for the burden of sewerage, is consistent with the purport of the burden-bearing of sewerage.

D) Therefore, since “wastewater” under the former Water Quality Conservation Act is also deemed to be included in “sewage” under the former Sewerage Act, the Plaintiff’s assertion on a different premise is without merit.

2) Whether the requirements for imposing a sewerage burden burden are incomplete

A) Article 61(1) of the former Sewerage Act provides that “A public sewerage management authority may impose all or part of the cost of rebuilding a public sewerage on the owner of a building, etc. (referring to the owner or construction entity in cases of construction or construction) that can discharge sewage of at least the quantity prescribed by Presidential Decree into a public sewerage system.” Article 61(3) of the same Act provides that “The standards for calculating and collecting charges borne by the relevant local government under the provisions of paragraph (1) and other necessary matters shall be prescribed by municipal ordinances of the relevant local government.” Article 35(1) of the former Enforcement Decree of the Sewerage Act provides that “the owner of a building, etc. that can discharge sewage of at least the quantity prescribed by Presidential Decree into a public sewerage system” means a person who intends to newly install, extend or change the use of a building, etc., which newly discharges or increase wastewater of at least 10 cubic meters per day (in principle, referring to the owner or construction entity of a new construction or construction; 2.00 cubic meters of the total volume of wastewater generated and charges generated in cubic meters or more.”

B) In the instant case, taking into account the following circumstances known in accordance with the relevant statutes and the facts recognized as above, the instant disposition did not meet the requirements for imposing the amount borne by the burden of sewerage under Article 61(1) of the former Sewerage Act, Article 35(1) of the former Enforcement Decree of the Sewerage Act, and Article 24 of the former Ordinance on the Use of Sewerage.

(1) The legislative intent of Article 61(1) of the former Sewerage Act is to create financial resources to expand public sewerage facilities by allocating the cost of remodeling public sewage treatment plants to the owners of buildings, etc. using public sewage treatment plants. The imposition of the burden borne by the burden-bearing entity is an indivative administrative act, which is the basis for imposing the burden-bearing entity, in accordance with the language and text of the tax laws and regulations, and it is not allowed to strictly interpret the defects of the law by analogical interpretation or expand the administrative convenience (see Supreme Court Decision 83Nu213, Dec. 27, 1983, etc.).

(2) According to Article 61(1) of the former Sewerage Act and Article 35(1) of the former Enforcement Decree of the Sewerage Act, a person who intends to newly discharge or increase sewage from at least 10 cubic meters of wastewater by newly building, enlarging, or altering the use of a building, etc., subject to the amount borne by the burden of the burden of the burden of the burden of the burden of the burden of the sewerage. The acts of newly constructing, enlarging, or altering the use of a building, etc., or discharging or increasing sewage from at least 10 cubic meters of wastewater a day is required as a requirement for imposing the burden of the burden of the burden of the burden of the burden of the burden of the sewage. This is to ensure that the owner of a building, etc. using a public sewage treatment plant newly discharges, expands, or alters sewage from a building, etc., with a view to newly discharging or increasing wastewater from at least 10 cubic meters of wastewater a day.

(3) In addition, Article 24(1) of the Sewerage Use Ordinance provides that the amount of wastewater generated by each administrative act, such as new construction, extension, or alteration of the purpose of use, shall be the total amount of wastewater generated when the amount of wastewater generated by such administrative act is at least 10 cubic meters/day, and the amount exceeding 10 cubic meters in cubic meters/day when the amount of wastewater generated by such administrative act is at least 10 cubic meters/day. The imposition period shall be imposed at the time of authorization or permission for new construction, extension, remodeling, reconstruction, alteration of the purpose of use, etc. of a building, and the period of collection (payment) shall be prior to the approval for use of the building. In full view of the above provisions, the Ordinance on the Use of Sewerage requires that the amount of sewage generated by new construction, extension, or alteration of the purpose of use as a requirement for imposing the amount borne

(4) However, regardless of whether the Defendant newly constructed, reconstructed, or altered the purpose of use of a building, etc., the Defendant calculated the amount borne by the burden of sewage by multiplying the amount of wastewater discharged in excess of the previous wastewater among the wastewater discharged between the last five years of the Plaintiff’s workplace through a transfer inspection by the unit

(5) Such calculation method does not require “the construction, renovation, or alteration of the purpose of use of a building, etc.” among the requirements for imposing the burden of sewerage charges, and instead requires only the amount of sewage generated is at least 10 cubic meters, the amount borne by the sewerage. This did not meet the requirements for imposing the burden of sewage under the former Sewerage Act and the former Ordinance on the Use of Sewerage.

(6) If the above requirement is not satisfied, the user fee of the public sewerage is against the nature of the burden borne by the person responsible for the burden of sewerage charges imposed on the expected quantity of sewage discharged for the construction, extension, and other acts of new construction of a building where sewage generation is anticipated, regardless of whether it actually discharges sewage unlike the amount of sewage (see Supreme Court Decision 2001Du8865, Jun. 24, 2003) (see Supreme Court Decision 2001Du8865, Jun. 24, 200).

C) Therefore, the instant disposition was unlawful since it failed to meet the requirements for imposing the amount borne by the sewage burden as required by Article 61(1) of the former Sewerage Act and Article 35(1) of the former Enforcement Decree of the Sewerage Act. The Plaintiff’s assertion on this part is with merit.

D. Sub-committee

Therefore, the instant disposition should be revoked as it is unlawful without examining the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

The plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Jong-Gyeong (Presiding Justice) (Presiding Justice)