Defendant

Prosecutor

Park Sung-sung

Law Firm Tae-ju, Attorney Kim Yong-ju

Ulsan District Court Decision 2006Gohap1740 Decided February 13, 2009

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

In light of the fact that the sample sample No. 92 is clearly indicated as the final discharge water on the pollutant inspection register, it is difficult to view that there was a mistake by a public official, such as misunderstanding the sample sample number, the color and size of the sample number No. 91 and the sample number No. 92 are different; in the case of the original wastewater, there was a practice of not inspecting it and disposing of it; and in the case of the original wastewater, there is a difference between the pollutant content of the A sample and the sample number, which is likely to be due to the difference between the pollutant content of the A sample and the sample sample collected outside the factory, and is mixed with the sewage and daily sewage of another factory, etc., the sample number No. 92 shall be deemed as B sample

In light of the fact that the sample sample No. 92 is not B sample, but C sample, i.e., raw water, even if it falls under the wastewater treatment process, the effective metal was not separately removed from the wastewater treatment process, and the rash, which removed sludge, was not operated after the malfunction on February 2, 2006, and the effective metal was not operated even on June 23, 2006, when the control date, it is deemed that C sample, which is the raw water, was discharged as it is, and thus, the facts charged also constitutes a conviction.

However, since the court below acquitted the charged facts of this case, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged

The summary of the facts charged in the instant case is that the Defendant was the factory site of the effective metal corporation (hereinafter only referred to as the “effective metal”), and the business operator who obtained permission for installation of wastewater discharge facilities or water pollution prevention facilities, or the person who operates the water pollution prevention facilities, shall not commit an act discharging water pollutants in excess of the permissible discharge standards, even though the Defendant did not normally operate discharging facilities and prevention facilities without justifiable grounds.

From August 5, 2005 to June 26, 2006, the permissible emission levels of effective metal factories, hydrogen ion concentration (pH) in Ulsan-gun, Ulsan-gun, Ulsan-gun (hereinafter parcel number omitted) are 5.8-8.6, and despite the fact that the permissible emission levels of hydrogen content are 1mg/L, it discharges hydrogen compounds which are specific substances harmful to water quality exceeding the permissible emission levels by discharging them without permission, in excess of the permissible emission levels through sewage pipes, by discharging them more than 10.8 of hydrogen ion concentration generated from the operation of the water tank and the process of pressure air conditioning without operating water pollution prevention facilities, even though the permissible emission levels of hydrogen content are 1mg/L.

B. The judgment of the court below

On this ground, the court below held that “A. Defendant’s assertion”

The facts charged of the instant case premised on the premise that the sample sample No. 92 on the “the result of the examination of water quality” in the “the result of the examination of water quality is a sample collected from the final discharge of the effective metal immediately before the discharge of the effective metal, but this is due to a clerical error by a public official in charge, and the sample No. 92 is not a sample collected from the final discharge of water, but a sample collected from the original wastewater before the treatment

B. Facts of recognition

In full view of each of the evidence duly admitted by this Court and each of the materials presented in the argument of this case, the following facts are recognized.

(1) The details of each sample collection and inspection;

(A) Collecting A samples

① Nonindicted 2 and 3, who is a public official in charge of the environmental control of ○○ Metropolitan City, received a report that alkic wastewater flows into a foreign-capital sewage treatment plant through sewage pipes, and confirmed that the said sample taken a sample (hereinafter referred to as “A sample”) from water that was located outside the company of pH (the hydrogen ion index) by collecting samples from water, including Nonindicted 1, around 17:00, while tracking the contamination route, at around 17:00, while tracking the contamination route, and also inspecting the water from water that was located outside the company of hH (the hydrogen ion index).

② In the aforesaid Manle, the final discharge of effective metal and the general sewage in different locations are mixed with each other through different pipes respectively. Nonindicted Party 1, the staff of the sewage treatment plant, who directly collected A sample, received as much as possible water from the outlets of effective metal as possible to prevent the mixture of samples into general sewage.

(b) Collecting samples B and C

① As above, Nonindicted 2, etc. retired from a sample collected outside the company’s alkic reaction, and discontinued some pipes connected to the Manle to the Manle to verify that they had been directed toward the effective metal, and enter into the effic metal environment by passing through the effic metal refining. At around 17:30 of the same day, Nonindicted 2, etc. collected samples from the final outflow of water immediately before the discharge from the company (hereinafter “B sample”) from the final outflow of water immediately before the discharge from the efficient metal guards (hereinafter “final outflow”) at around 17:45 meters away from the final outlet, and collected samples from the water treatment plant at approximately 150 meters away from the final outlet to the water treatment plant, and collected samples from the water treatment plant to the water treatment plant (hereinafter “C samples”) before the discharge into the efficious water tank, and immediately collected the efficiic acid.

② Non-Indicted 2 collected samples and added samples to the office in the effective metal, and entered them in his pocket book as “17:30 (PH and 11), ② 17:45 (H: 11) and entered them in his pocket book in order to record the time and place of the collection of samples. The person in charge of the environment of the effective metal, who is in charge of the environment of the effective metal, has made a white plastic with a size and shape similar to that of the sample B and C samples, indicated as “1” and “2”, and sealed the lid as Scar tape, and then did not proceed with the investigation any further.

(c)Request for the inspection of samples and the result thereof;

① On June 26, 2006, Non-Indicted 2 brought two water pumps containing samples to Non-Indicted 4, respectively, and made them indicated as “91 (hereinafter “91 sample”) and “92 (hereinafter “92 sample”).” The Non-Indicted 2 requested the ○○ Metropolitan City Health and Environment Research Institute to conduct an inspection, and the respective sealing and sealing state of samples at the time of request.

② In order to conduct an additional investigation on June 26, 2006, Nonindicted 4 visited the filial metal to obtain the signature of Nonindicted 5, a person in charge of the environmental management of the filial metal. The confirmation letter states that the final explosion was collected on June 23, 2006 (the date and time of the collection, as seen earlier, appears to be erroneous in light of the order of the extraction of samples and the contents written in Nonindicted 2’s pocket book).

③ The date and time of collection of sample No. 91 shall be indicated as “the date and time of collection, June 23, 2006,” and the date and time of collection of sample No. 92 as “the date and time of collection, June 23, 2006,” and the result of inspection of the sample shall be indicated as follows.

The test results of the table testing items contained in the main text include 0.41 0.79 0.74.79 6 0.16 0.247 0.247 0.07 07 0.06 07 0.06 00 0.06 00 0.026 8 0.026 0.06 8 0.026 0.026 0.00 0.70 07 0.07 07 0.060 0.07 07 0.06

(2) the manufacturing and wastewater treatment process of effective metals;

(가) 효성금속은 알루미늄 제품(샷시 등)을 생산하기 위해 알루미늄원자재를 용해, 압출, 피막, 출고의 과정을 거치는데 그 과정 중 폐수의 대부분이 피막공정에서 발생하고, 그로 인하여 발생한 폐수는 일단 680㎥ 규모의 집수조 2개에 모여 저장된 후 폐수처리시설로 보내져 중화, 응집, 침전 과정을 거쳐 처리되며, 중화조에서는 중화 처리를 위해 농황산을 투입하여 pH 산도를 조정하게 되고, 중화된 폐수는 응집조와 침전조로 이동하여 슬러지{sludge, 하수처리 또는 정수(정수)과정에서 생긴 침전물}를 가라앉게 한 다음 탈수기를 거쳐 방류하게 된다.

(B) Of the process in which effective metal are carried out, if Aluminium is static from the voltage process to the form of gold, part of Aluminium is asked in the form of gold. When estinium is treated by using nitrogens containing a draft in order to clean it, and in order to strength and extend the life style, wastewater containing a draft is discharged in the process, but the process is not required to remove the draft separately except for the dilution of wastewater containing a draft into water.

(C) Effal metal purchased and used nitrogens from Nonindicted Co. 6 and calculated the total average monthly quantity from January 2005 to July 2006 by dividing the total quantity purchased from July 2006, the monthly average purchase volume is approximately 63.16 kilograms, and it cannot be uniformly determined that nitrogens are 1.5% per annum, but it contains approximately 0.95 kilograms (=63.16 kilograms x 0.015%) on the premise that all of the foregoing nitrogens purchased by the Effal metal are used. On the premise that the monthly average chemical emission amount is calculated on the basis that it is all of the above nitrogens purchased by the Effal metal, the average monthly average of approximately 3,63 tons in the year 205 and about 460 to 46.6.46% in the year 206). On the other hand, the Effal metal was calculated on the basis that it is necessary to lower the average monthly average of approximately 950 tons in the year 2005.

(D) From February 2005, enzym metal converted the popic process from which wastewater was the largest generated to the external state to reduce the amount of wastewater generated (the average monthly amount of industrial water used as well as the amount of wastewater used as well) and collected wastewater into two water tanks and treated wastewater twice a month.

(E) On the other hand, in the process of treating wastewater, the radars (the role of moving the polluted sludge into a ske, broom-shaped quizzle, broom-shapeds, very low speed, and the role of gathering the polluted sludge into the earth and making it easy to transfer it to the sloping, and making it easy to transport it to the slopings, and the role of not responding to it. On February 2006, the problem occurred frequently in the process of treating wastewater, such as the occurrence of the malfunction, etc., which occurred after the after the aftermath of early February 2006. On June 23, 2006, the control was conducted, and the operation of the water treatment facilities was suspended (the process of dilution with the water at the time is not interrupted, so that it is not the process of dilution).

(f) The wastewater treatment of which has been completed is mixed with the daily sewage generated in the effic metal, toilets, etc. and is discharged into the outside of the company through the final outlet inside the company, and the effic metal has not been controlled by discharging wastewater exceeding the permissible discharge levels prior to the instant control.

(c) Markets:

In light of the following circumstances: (a) ○○○○○ 2’s soil contamination level of 10.8 and 74.79m/liter’s soil was detected; (b) ○ ○ ○ 2’s soil was collected for reference but was discarded without requesting the examination of ingredients; (c) it is difficult to believe that the sample was disposed of without entirely examining the quality of the water taken up until the seal; (b) according to Non-Indicted 1’s statement in the 6th trial record, Non-Indicted 1’s samples were collected after mixing the public sewage with 10 times; (c) it is difficult to view that the sample of Non-Indicted 2’s water samples were collected at the time of 20 times more than those of the 9th 2nd 2nd 2nd o’s soil collection; and (d) it is difficult to view that the sample of Non-Indicted 1’s soil samples were collected at the same time as those of the 9th o’clock 2nd 9th o’s water collection.

In addition, for the foregoing reasons, the sample sample No. 92 of the "wastewater water quality testing result" is deemed not B sample, but C sample. However, it is difficult to conclude that the sample sample sample No. 91 of the above answer is not a sample sample collected outside the 91 sample wall, and it is not sufficient to consider the result of the component test of the above answer as evidence of conviction for the part exceeding the permissible discharge level regarding hydrogen concentration among the facts charged of this case [the method of collecting water quality samples (educational materials) published by ○○ Metropolitan City on February 2006]. However, according to Non-Indicted 1's statement in the 6th trial record, the above sample sample No. 91 is not sufficient to be used as evidence for the purpose of collecting wastewater, and even if samples are not used as evidence for the purpose of collecting water, it is difficult to say that the sample sample of the above AM is not suitable to be taken into consideration as evidence for the purpose of collecting water quality of the 9th trial by mixing it with the appearance of effective metal outside the bar.

Ultimately, as seen in the facts charged in the instant case, “the results of water quality testing” cannot be used as evidence for conviction. In other words, Non-Indicted 3, 4 of the witness’s statement in the third trial record, Non-Indicted 2’s statement in the fourth trial record, Non-Indicted 1’s statement in the sixth trial record, Non-Indicted 5, 7, and 3’s statement in the witness’s statement, enforcement manual, confirmation of violation, sampling confirmation, copy of the waste management register of business place waste treatment sludge, wastewater discharge and preventive facilities operation log copy, interview statement with the related parties, each field photograph book, investigation report (the current use of industrial water), ○ University Construction Environment Engineering Department, and ○○ University Construction Environment Engineering Department, and there is no other evidence to acknowledge it, on the ground that the facts charged in the instant case constitute a case without proof of criminal facts.”

C. Judgment of the court below

Examining the reasoning of the judgment of the court below in comparison with records, the above recognition and judgment of the court below are just, and there is no error of misconception of facts or misunderstanding of legal principles that affected the judgment, as otherwise alleged by the prosecutor, and the prosecutor's above assertion is without merit (it is defective in the decision that the ○○ Metropolitan City shall impose the water quality excess discharge dues of 2,133,289,630 won on the filial metal, and the filial metal shall file a lawsuit against the ○ Metropolitan City Mayor for the cancellation of the decision to impose the above water quality excess discharge dues of 2006Guhap3173 on the Ulsan District Court 2006Guhap3173 on the ○○ Metropolitan City. The 92 sample in the above lawsuit was won on the ground that the samples are deemed as C sample, and it was dismissed in the Busan High Court for the same reason, even though ○○ Metropolitan City Mayor appealed appealed on the above appellate judgment, but the judgment was dismissed by the Supreme Court, which became final on February 3, 2009

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sang-hoon (Presiding Judge) and Lee Jong-chul