Plaintiff (Attorney Lee Tae-won, Counsel for plaintiff-appellant)

The Yangju Market

September 11, 2018

1. The Defendant’s disposition of ordering the Plaintiff to take waste removal measures on July 7, 2017 is 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. On January 2, 2015, Nonparty 2, the former owner of ○○-si △△△△ (number 1 omitted), 2,904 square meters, and 940 square meters in a miscellaneous land (number 2 omitted) of the same Ri (hereinafter “instant land”) concluded a contract with Nonparty 1 to sell the instant land.

B. On October 6, 2015, the Defendant’s public officials received a civil petition that wastes were abandoned on the instant land, and conducted a business trip on the instant real estate on October 6, 2015, confirmed that at least 30 tons of various wastes, such as incineration residues, waste fibers, construction waste, etc., were loaded on the instant land. Nonparty 1 stated that “The Defendant’s public officials would temporarily store wastes with respect to his own business and remove all wastes by October 20, 2018.”

C. On October 8, 2015, the Defendant ordered Nonparty 1 to take measures for the removal of wastes with the purport that “the removal of wastes neglected to the instant land by October 20, 2015, pursuant to Article 48 of the Wastes Control Act” was “the removal of wastes neglected to the instant land by October 20, 2015.”

D. On October 27, 2015, the Defendant accused Nonparty 1 as Nonparty 1’s unauthorized dumping of industrial wastes under Article 8(1) of the Wastes Control Act and as a non-performance of an order to take measures to remove wastes under Article 48 of the same Act.

E. The Plaintiff acquired the ownership of the instant land on October 8, 2015 through the sale of the land through a voluntary auction.

F. On March 30, 2016, public officials belonging to the Defendant confirmed that the wastes neglected to the instant land were not removed after conducting a business trip investigation on the instant land.

G. On February 20, 2017, the Defendant’s public officials received a civil petition for a large amount of illegal wastes on the instant land, and conducted a business trip investigation on the instant land, and confirmed that approximately KRW 500 tons of industrial wastes, such as waste synthetic resin, waste vinyl, and waste fiber, were illegally dumped within the last one to two months.

H. On February 28, 2017, the Defendant requested the Yangju Police Station to investigate the commercial wastes into the instant land on the part of the actors and waste collectors and importers.

(i) On July 7, 2017, the Defendant issued an order to remove waste without permission (hereinafter “instant disposal”) to the Plaintiff stating that “The owner of the land shall keep clean the land he/she owns pursuant to Article 7(2) of the Wastes Control Act, and, pursuant to Article 8(3) of the same Act, he/she shall order the owner of the land to take measures to remove wastes neglected to maintain cleanliness of the instant land (by December 31, 2017) within the early date (by December 31, 2017) to dispose of the wastes at the disposal time and submit the results of measures to dispose of the wastes at the disposal time,” which read “The owner of the land shall keep clean the land he/she owns

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 14 and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Necessary measures that may be ordered to a landowner to maintain cleanliness pursuant to Article 8(3) of the Wastes Control Act are not only related to the maintenance of cleanliness or the large cleaning of land pursuant to Article 7(2) of the same Act. Thus, based on the above provision, an order to dispose of wastes pursuant to Article 48 of the same Act cannot be issued. Therefore, the instant disposition is unlawful since it was conducted without the basis of the order.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Acts and subordinate statutes imposing obligations on the people or restricting the property rights of the people must be clearly defined, and such regulations must be strictly interpreted and applied in accordance with the principle of clarity.

2) The key issue of the instant case is whether the Defendant can issue an order to the Plaintiff, a landowner, to dispose of wastes without permission on the instant land pursuant to Article 8(3) of the Wastes Control Act.

3) In light of the aforementioned legal principles, considering the following circumstances revealed by Gap evidence Nos. 2 through 5 (including each number), and the relevant laws and regulations, it is reasonable to view that the defendant cannot order the plaintiff, a landowner who acquired the ownership of the land of this case through voluntary auction, to dispose of industrial wastes illegally dumped in the land on the basis of Article 8 (3) of the Wastes Control Act, insofar as the plaintiff does not fall under any of the subparagraphs of Article 48 of the Wastes Control Act. Thus, the instant disposition is unlawful since it cannot be acknowledged as the ground for the disposal.

A) Wastes dumped in the instant land appears to be “commercial wastes” under Article 2 subparag. 3 of the Wastes Control Act. Industrial wastes must be disposed of by themselves, pursuant to Articles 17 and 18 of the Wastes Control Act, or by entrusting the waste disposal business entity with the disposal of the wastes generated from his/her workplace. Nevertheless, Nonparty 1 and a person in unknown name (it seems that there is no evidence that the Plaintiff dumped or conspired to dispose of the wastes in the instant land) have been dumped in the instant land, and such act violates the prohibition of dumping wastes under Article 8(1) of the Wastes Control Act. In the event that the provisions on the prohibition of dumping wastes under Article 8(1) of the Wastes Control Act are violated, the Minister of Environment or the head of a local government may order the person entrusting the disposal of wastes without verifying the waste disposal capacity of the waste disposal business entity under Article 48(1)3 of the Wastes Control Act, or the person who entrusted the disposal of wastes directly to another person, who is the owner of the instant land or the owner of the land buried in the instant land without his/her name.”

B) Meanwhile, Article 3-2(4) of the Wastes Control Act provides that “Any person who causes environmental pollution due to wastes shall be responsible for restoring the polluted environment, and shall bear the expenses to be incurred in restoring the damage caused by contamination,” and Article 49 of the Wastes Control Act provides that “the Minister of Environment or the head of a local government may vicariously execute it in accordance with the Administrative Vicarious Execution Act and collect the expenses if the person who received an order, such as Article 48 of the same Act, fails to comply with the order,” and the Defendant provides that “If Nonparty 1, etc. issued a waste disposal order in accordance with Article 48 of the Wastes Control Act and Nonparty 1, etc. fails to comply with the order, he/she may vicariously execute the disposal of the wastes and collect the expenses from Nonparty 1, etc.”

C) Article 8(3) of the Wastes Control Act provides that “The head of a local government may order necessary measures pursuant to municipal ordinances of the relevant local government if the owner, occupant, or manager of the land or building fails to maintain cleanliness pursuant to Article 7(2).” Article 7(2) of the same Act provides that “the owner, occupant, or manager of the land or building shall endeavor to maintain cleanliness of the land or building he/she owns, occupies, or manages, and shall conduct large cleaning according to the plan as determined by the head of the relevant local government,” and “large cleaning” is different from “the disposal of wastes” under Article 48 of the Wastes Control Act, in view of the fact that the owner of the land and the owner of the land are not obliged to take measures so that he/she may not take measures against the owner of the land at any time, such as the owner of the land without permission, in light of the principle that he/she may not take measures against the owner of the land without permission for the disposal of wastes pursuant to Article 8(3) of the Wastes Control Act.”

4) Furthermore, even if the head of a local government can issue an order to dispose of wastes neglected on the land owned by the owner pursuant to Article 8(3) of the Wastes Control Act, in order to issue a waste disposal order pursuant to the above provisions, the landowner’s breach of the duty to maintain cleanliness is required. As seen earlier, waste exceeding 500 tons from the land in this case’s land is arbitrarily dumped by Nonparty 1 and the Plaintiff violated the duty to maintain cleanliness in relation to the waste disposal. Therefore, the instant disposition is unlawful in such a sense that it is difficult to recognize the reason for disposal.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Lee Jae-soo (Presiding Judge)

(1) Article 8(1) and (2) of the Wastes Control Act and Article 48 of the same Act provide that “waste” is simply “waste,” while Article 65 of the same Act provides that criminal punishment shall be imposed on the non-performance of an order to take measures under Article 48, and administrative fines shall be imposed on the dumping of “household waste” under Article 68 of the same Act. Ultimately, “waste” under Article 48 of the Wastes Control Act refers to the remainder excluding “household waste.”