[1] Whether it constitutes a waste under the Wastes Control Act in a case where any substance that is no longer needed for the business activities of the relevant business establishment is supplied as recycling materials (affirmative)

[2] The purport of Article 16 of the Criminal Act concerning the mistake of law

[3] Whether Article 10 (2) 2 of the Enforcement Rule of the Wastes Control Act is invalid because it violates the principle of clarity or infringes on the freedom of business under the Constitution (negative)

[1] Article 2 subparagraph 1 of the Wastes Control Act / [2] Article 16 of the Criminal Act / [3] Article 24 (2) of the Wastes Control Act, Article 2 subparagraphs 8 and 9 of the Enforcement Decree of the Wastes Control Act, Article 10 (2) of the Enforcement Rule of the Wastes Control Act

[1] Supreme Court Decision 2001Do70 decided Jun. 1, 2001 (Gong2001Ha, 1559) / [2] Supreme Court Decision 2005Do4592 decided Sep. 29, 2005 (Gong2005Ha, 1744)

Defendant 1 and one other

Defendants

Attorney Park Jong-tae

Gwangju District Court Decision 2005No2047 Decided January 6, 2006

All appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 2 subparag. 1 of the Wastes Control Act (hereinafter “Act”) defines wastes as “waste, materials, sludge, waste oil, waste acid, waste egg, animal carcasses, etc.” In light of the purport of the Act to strictly regulate the discharge of wastes that are likely to seriously affect the natural and living environment and living environment, thereby promoting the preservation of environment and the improvement of the quality of people’s lives, such substances shall be deemed as wastes as prescribed by the Act, insofar as such substances discharged from a workplace have become unnecessary for the business activities of the workplace concerned, and the obligation to report of the waste discharger shall not be deemed as having lost the nature as wastes or having disappearedd the obligation to report the waste discharger (see Supreme Court Decision 2001Do70, Jun. 1, 2002).

In the same purport, the court below is just in holding that earth and sand which occurred after executing the dredging work for the crossing drainage pipes (hereinafter “the land and sand in this case”) falls under the wastes stipulated in Article 2 subparag. 1 of the Act, and even if the Defendants attempted to use the land in the repair work for the legally laps of an expressway lost highway, they do not lose the nature of the land as a waste, and there is no error of law by misunderstanding the legal principles as to the wastes stipulated in the Act.

2. Regarding ground of appeal No. 2

Article 16 of the Criminal Code provides that "the act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable reason to believe that the misunderstanding does not constitute a crime" means a simple legal ground, not a case where a general crime is committed, but it is generally accepted that it does not constitute a crime under Acts and subordinate statutes in his special circumstances, and that it shall not be punishable if there is a justifiable reason to mislead misunderstanding (see Supreme Court Decision 2005Do4592, Sept. 29, 2005, etc.).

Even if Defendant 1’s answer materials on the electronic civil petition counter posted on the website of the Ministry of Environment include the notice “I will not fall under any wastes in a natural condition that is generated from the construction work to secure the depth, not for removing pollutants” or “I will confirm the notice “I will not constitute any wastes in good natural condition,” and mistake that the instant earth and sand do not constitute any wastes, according to the records, it is difficult to view that there is a justifiable reason for Defendant 1 to mislead it as above, and further, it is difficult to view that the Nonindicted Co., Ltd., who performed the construction work of dredging with the crossing pipe, was not aware of the fact that the instant earth and sand were not a wastes. The Defendants’ assertion in the grounds of appeal on the premise of other positions is rejected.

3. Regarding ground of appeal No. 3

In full view of the provisions of Article 24(1) and (2), Article 2 subparag. 3, Article 2 subparag. 8 and Article 9 of the Enforcement Decree of the Act, and Article 2 subparag. 4 of the Framework Act on the Construction Industry, wastes generated from construction works under the provisions of Article 2 subparag. 4 of the Framework Act on the Construction Industry or from a series of construction works or other operations at least 5t of wastes constitute industrial wastes, and a business operator who discharges them is obligated to report the kinds, quantity, etc. of wastes to the head of the Si/Gun/Gu pursuant to Article 24(2) of the Act as an industrial waste discharger. Since there are about 50 t and garbage generated from the instant earth and sand in the instant case after the implementation of a cross-flow pipe dredging work, it constitutes industrial wastes, and the said construction site constitutes a business place where the obligation to report waste discharge under Article 24(2) of the Act is imposed.

In the same purport, the court below is just in holding that the site for the dredging project of the crossing drainage pipe of this case is a workplace subject to the obligation to report waste discharge under Article 24 (2) of the Act, and there is no error of law by misapprehending the legal principles as to the workplace subject to the obligation to report waste discharge.

Meanwhile, according to the records, since the volume of garbage that occurred after the implementation of the dredging project for the crossing drainage pipes is deemed to be about 0.4t to 0.6t, it is deemed that the court below erred in the misapprehension of facts that recognized the quantity of garbage as about 4t. However, as long as the soil of this case, which was loaded on the road along with garbage after the dredging work, constitutes wastes, and the quantity exceeds 5t, it cannot be said that the above mistake of facts affected the conclusion of the judgment.

4. Regarding ground of appeal No. 4

According to Article 24 (2) of the Act and Article 10 (1) 4 of the Enforcement Rule of the Act, a business operator who discharges at least 5t industrial wastes through construction works under Article 2 subparagraph 8 of the Enforcement Decree of the Act and a series of construction works or works under Article 2 subparagraph 9 of the Enforcement Decree of the Act shall be deemed to be an industrial waste discharger who has the duty to report the discharge of industrial wastes under Article 24 (2) of the Act. According to the records, the defendant Korea Highway Corporation shall be deemed to be an industrial waste discharger who has the duty to report the discharge of industrial wastes, such as soil and sand, which occurred through the dredging work, and garbage, etc., generated through the dredging work. Meanwhile, since the Act provides for penal provisions under Article 61 subparagraph 2 of the Enforcement Decree of the Act and provides for punishment of a person who has failed to report in violation of Article 24 (2) for not more than two years, or a representative of a corporation, an individual, or an employee of the corporation or an individual, or an individual, to whom Article 58 through 6 of the Act has not been punished.

The court below's decision that omitted Article 62 of the Act from the applicable law to Defendant 1 is just in finding the above defendant guilty by applying Article 61 subparagraph 2 of the Act and Article 24 (2) of the Act to the above defendant, and there is no error in the misapprehension of legal principles as to persons subject to Article 61 subparagraph 2 of the Act and Article 24 (2) of the Act.

5. Regarding ground of appeal No. 5

Since an industrial waste discharger who falls under Article 10(1)1 through 3 and 5 of the Enforcement Rule of the Act and an industrial waste discharger who falls under Article 10(1)4 of the same Enforcement Rule are deemed to have a big difference in the types of waste discharge, Article 10(2) of the Enforcement Rule of the Act can not be deemed as significantly violating the equity or violating the principle of equality and the principle of proportionality, on the ground that Article 10(2) of the Enforcement Rule of the Act sets differently the time for reporting by the above industrial waste discharger in line with its characteristics. As long as Article 2 subparag. 8 and 9 of the Enforcement Rule of the Act clearly stipulate the standard waste discharge quantity subject to reporting at the time of reporting under Article 10(2)2 of the Enforcement Rule of the Act, it cannot be deemed that the determination of whether to punish the actual waste discharge quantity is in violation of the principle of clarity or infringement on constitutional freedom of business. Furthermore, Article 10(2)2 of the Enforcement Rule of the Act does not constitute a violation of the principle of no punishment without law.

In the same purport, the lower court is justifiable to have determined that Article 10 (2) 2 of the Enforcement Rule of the Act cannot be deemed null and void.

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

Justices Yang Sung-tae (Presiding Justice)