In a case where Defendant was indicted for violating the Wastes Control Act by failing to comply with a corrective order issued by the Environment Agency to complete the follow-up management of waste disposal facilities within a given period after the Defendant acquired the site for waste disposal facilities installed and operated by Company A in the process of public sale by the disposition on default, the case affirming the judgment below holding that the Defendant’s corrective order was not an administrative disposition issued to a person who was not obligated to comply with the order, on the ground that he did not succeed to the rights and obligations arising from the permission, approval, or reporting

In a case where Defendant was indicted for violation of the Wastes Control Act on the ground that he/she failed to comply with a corrective order issued by the Korea Environment Agency to complete follow-up management of the waste disposal facilities within a certain period of time after the construction and operation of the waste disposal facilities, the case affirming the lower court’s determination that it did not require the Defendant to succeed to the rights and obligations under the Wastes Control Act even if the Defendant acquired the waste disposal facilities within a certain period of time, on the ground that the concept of “transfer” under the Act and the “auction” or “sale of seized property,” etc. was generally used separately in the Wastes Control Act, but the Defendant did not have any specific provision on succession to the rights and obligations under the Act on the ground that the above facilities were disposed of as an auction and operation of the waste disposal facilities at the time of the public sale, and that the above facilities were not disposed of as an auction and operation of the waste disposal facilities, etc., even if the Defendant acquired the above facilities within the public sale facilities, it cannot be deemed that the Defendant did not have any obligation to succeed to the rights and obligations under the Act on the ground of succession to the rights and obligations under the Act.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 24(5) (see current Article 17(8) and (9) of the former Wastes Control Act (Amended by Act No. 6627, Jan. 26, 2002); Article 32(1) (see current Article 33(1)); Article 33(1) of the former Wastes Control Act (Amended by Act No. 8371, Apr. 11, 2007); Article 33(1) of the former Wastes Control Act (Amended by Act No. 10389, Jul. 23, 2010); Article 33(1) and (2) of the former Wastes Control Act (Amended by Act No. 13038, Jan. 20, 2015); Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Law Firm Subdivision, Attorneys Lee Young-young et al.

Daejeon District Court Decision 2016No3128 Decided June 1, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. The summary of the facts charged of the instant case is that the Defendant, on August 28, 2006, acquired and owned the site for the instant waste disposal facilities, which was completed in Sejong Special Self-Governing City ( Address omitted), in the process of public sale by the tax office in accordance with the disposition on default, and failed to comply with the corrective order issued by the head of the Geum River basin environmental office on November 2015 to complete the follow-up management, such as the maintenance and management of rainwater exclusion facilities, the treatment and management of water, the preparation of a comprehensive report on environmental impacts, etc. on the said waste disposal facilities by December 16, 2015.

2. A. Article 32(1) of the former Wastes Control Act (wholly amended by Act No. 8371 of Apr. 11, 2007) which was enforced by the Defendant at the time of acquisition of the site for the instant waste disposal facilities in the public sale procedure provides that “If a person who has obtained a license for waste disposal business under Article 26, or who has obtained approval for installation of waste disposal facilities under Article 30, transfers the waste disposal business or waste disposal facilities, or dies, or if a legal entity is merged, the transferee, heir, or the legal entity surviving the merger, or the legal entity established by the merger, succeeds to the rights and obligations arising from the permission, approval or report.”

The Wastes Control Act amended by Act No. 8371 of Apr. 11, 2007 provides that “If a person who has obtained a license for waste treatment business under Article 25, or who has obtained approval for installation of waste disposal facilities under Article 29, transfers the waste treatment business or waste disposal facilities, dies, or if a corporation is merged with another corporation, the transferee, heir, or corporation surviving the merger, or corporation established by the merger shall succeed to the rights and obligations pursuant to the permission, approval, or report.”

B. However, as before the amendment, the Wastes Control Act amended by Act No. 10389, Jul. 23, 2010; likewise, in relation to succession to the above rights and obligations, Article 33(1) provides, “If a waste treatment business entity, a person who has obtained approval for or filed a report on installation of a waste treatment facility under Article 29, or a person who has filed a report on installation of a waste treatment facility under Article 46(1) transfers, dies, or a corporation is merged with another corporation, the transferee, heir, or a corporation surviving the merger, or a corporation established after the merger succeeds to the rights and obligations arising from the permission, approval, or report.” Meanwhile, Article 43(2) provides that “The person who first acquired the above waste treatment facility shall succeed to the rights and obligations arising from the sale under the Civil Execution Act, realization under the Debtor Rehabilitation and Bankruptcy Act, the sale of seized property under the National Tax Collection Act, the Customs Act, or the Framework Act on Local Taxes, or any other similar procedures, the person who first acquired the above permission, approval or report on waste treatment facilities shall succeed to the rights and obligations.”

C. On the other hand, Article 24(5) of the Wastes Control Act amended by Act No. 5865, Feb. 8, 1999; and Article 24(5) of the Wastes Control Act (amended by Act No. 5865, Feb. 8, 199; “If an industrial waste discharger transfers his/her business, dies, or a corporation is merged with another corporation, the transferee, heir, or corporation surviving the merger or established by the merger succeeds to the rights and obligations related to the relevant industrial wastes. The same applies to a person who takes over the business of an industrial waste discharger according to an auction under the Civil Procedure Act, a realization under the Bankruptcy Act, a sale of seized property under the National Tax Collection Act, the Customs Act, or the Local Tax Act, or any other similar procedure.” The same applies to a person who takes over the industrial waste discharge business by auction, etc.

3. As seen above, although the concept of “transfer” and “auction” under the Act or “sale of seized property” have been separately used in the Wastes Control Act, it was only defined as to succession to the rights and obligations in the case of transfer of waste disposal facilities, etc., but it is not separately defined as to the cases where the above facilities, etc. were disposed of by auction, etc. as amended by Act No. 10389 on July 23, 2010, and the Wastes Control Act was amended by Act No. 10389 on July 23, 2010, and the person who acquired the above facilities, etc. by auction, etc. succeeds to the rights and obligations before acquisition of the waste disposal facilities. In addition, the interpretation of penal provisions does not exclude from a teleological interpretation that takes into account the legislative intent and purpose of the Act, legislative history, etc., but it is unreasonable to interpret penal provisions strictly and expand the meaning of the provisions that the Defendant acquired by transfer of waste disposal facilities in the direction unfavorable to the defendant in the process of public sale, etc.

Even if waste disposal facilities, etc. are acquired through auction, public sale, etc. in order to effectively achieve the legislative purpose of the Wastes Control Act, it is deemed necessary to ensure the continuous follow-up management of waste disposal facilities, etc. by allowing succession to the rights and obligations under the permission, approval, or report prior to the acceptance. However, in such cases, even though the provision that allows succession to the rights and obligations is not prepared clearly, it is not permissible to achieve the purpose by expanding the scope of punishment through a legal interpretation that leads to such legislative purpose.

4. In the same purport, the court below is just in maintaining the judgment of the court of first instance which acquitted the defendant on the ground that the defendant did not succeed to the rights and obligations arising from the permission, approval or report on the waste disposal facilities of this case and that the corrective order against the defendant was issued to the non-obligatory person and did not constitute a crime even if the defendant did not comply with such order. Contrary to the allegations in the grounds of appeal, there

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)