[1] The requirements to constitute "public sewerage" under Article 2 of the Sewerage Act

[2] The case where a sewage discharger is liable to pay the public sewerage fee

[3] Criteria to determine whether the defect of an administrative disposition taken by mistake of facts is obvious

[4] The case holding that the imposition of a sewage fee, which was made by mistakeing the fact that the public sewerage was used even if the public sewerage was not used, is serious, but it is necessary to investigate the factual basis as to whether the sewage was used, and it is not clear that it was appearance

[1] According to Article 2 of the Sewerage Act, the term "sewage" means the total body of sewage conduits, sewage terminal treatment facilities, and other structures and facilities installed to eliminate or treat sewage, and the term "public sewerage" means the sewerage installed or managed by a local government. Thus, in order for a certain facility to constitute a public sewerage system, it shall be an artificial structure or facility that a local government directly installed or directly installed, acquires and manages the right to use, etc. from another person. Even if a public sewerage management authority starts the use of a public sewerage system, if a local government directly installs or directly installs it, it shall not be a public sewerage system.

[2] It is reasonable to interpret that only the person who actually discharges sewage using a public sewerage system as the price for the use of the public sewerage system shall be liable to pay the sewage fee according to the volume of sewage.

[3] In order to find the defect of an administrative disposition that misleads the factual basis and made it clear, it should be the case where the material, based on which the factual basis was erroneous, lacks the appearance of the material, lacks the authenticity of the material, or is objectively impossible to recognize the establishment or the authenticity of the material, and in case where the existence or absence of the defect can be clarified only when the factual basis is accurately investigated, such defect cannot be seen as apparent in appearance.

[4] The case holding that the imposition of a sewage fee, which was made by mistakeing the fact that the public sewerage was used even if the public sewerage was not used, is serious, but it is necessary to investigate the factual basis as to whether the sewage was used, so it is not clear to be appearance.

[1] Article 2 of the Sewerage Act / [2] Article 21 (1) of the Sewerage Act, Article 14-2 (2) of the Enforcement Decree of the Sewerage Act, Article 19 of the Ordinance on Sewerage Use in Ulsan Metropolitan City / [3] Article 19 of the Administrative Litigation Act / [4] Article 21 of the Sewerage Act, Article 19 of the Administrative Litigation Act

[1] [2] Supreme Court Decision 2001Du8865 Decided June 24, 2003 (Gong2003Ha, 1625), Supreme Court Decision 2001Du872, 889, and 8896 Decided July 11, 2003 / [3] Supreme Court Decision 91Nu6863 Decided April 28, 1992 (Gong192, 1742), Supreme Court Decision 2003Du7019 Decided April 16, 2004 (Gong204Sang, 823)

Filisung Co., Ltd. (Law Firm Kim & Lee, Attorneys Kim Jong-ho, Counsel for the defendant-appellant)

Ulsan Metropolitan City (Attorney Cho Young-soo, Counsel for the defendant-appellant)

June 22, 2005

1. The defendant shall pay to the plaintiff 971,550,320 won with 5% interest per annum from each payment date to July 6, 2005, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Three-minutes of litigation costs are assessed against the plaintiff and the remainder are assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 2,773,238,80 won and attached Form 2,238,880 won with 5% interest per annum from each payment date to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged in full view of the overall purport of the pleadings, and there is no counter-proof in the following facts: Gap evidence 1-1-3, Eul evidence 1-1-2, and Eul evidence 1-2.

A. The Ulsan City Mayor (Ulsan City was repealed by the Act on the Establishment, etc. of Ulsan Metropolitan City, July 15, 1997, and the Ulsan Metropolitan City succeeded to its business and property) designated the commencement of use and the discharge of the public sewerage system on September 15, 1983 in accordance with the Framework Act on the Maintenance and Management of Ulsan City, established around September 15, 1980.

B. Ulsan City, as of October 23, 1984, had started construction of a sewage terminal treatment plant in Ulsan-gu, Ulsan-gun, Ulsan-gun, Ulsan-gun, Ulsan-do, 600-4, Ulsan-do, and operated it from around 1995 as it completed the construction of a sewage terminal treatment plant.

C. From around December 1968, the Plaintiff installed and operated one factory manufacturing Naglon's house in Ulsan-dong, Ulsan-dong, 588, the above drainage area, and two factories manufacturing Nagwon's house. To purify wastewater generated in the manufacturing process in compliance with the water quality standards under the relevant Acts and subordinate statutes, such as the Water Quality Conservation Act, and discharge wastewater into public waters, the Plaintiff obtained permission for the first installation of wastewater discharge facilities from the Gyeongnam-do around December 8, 1974, and obtained permission for the installation of wastewater discharge facilities and permission for alteration on several occasions from the Ulsan Metropolitan City Mayor until November 20, 2004.

D. Accordingly, the Plaintiff collected and purified wastewater in a general wastewater treatment plant that was established on its own, and discharged purified sewage into the sea through a death examination, which is a river near the factory. There is no fact that the Mayor of Ulsan Metropolitan City obtained a permit from the Mayor of Ulsan Metropolitan City to exclude the flow of public sewerage under Article 24-2 of the Sewerage Act until now.

E. The director of the Nambu Business Headquarters of the waterworks headquarters under the defendant (hereinafter referred to as the "director of the Nambu Business Headquarters") considers that the plaintiff's wastewater discharged through death is subject to the imposition of the sewage fee on the plaintiff from January 1, 1993. From January 15, 200 to September 17, 2004, the defendant imposed the sewage fee of KRW 2,773,238,880 on the sum of the usage fee stated in the "the sum of the usage fee of the sewage and the payment of the sewage" stated in the "the usage fee of the sewage" column, and the plaintiff paid the sewage fee of KRW 2,73,238,80 on each day (hereinafter referred to as the "the imposition disposition in this case"). The plaintiff paid each payment of the usage fee of the sewage from January 15, 200 to September 17, 204.

F. On the other hand, in the case of revocation of disposition, etc. of the imposition of sewage fee, etc., which was filed against the south Branch, the Ulsan District Court dismissed the appeal on September 14, 2001, on the ground that the head of the Southern Branch Office, on September 20, 200, the head of the Nam Branch Office, which was not allowed to impose sewage fee for the sewage for the treatment facilities of the KS case discharged through the death examination, gold spring, etc., and on the other hand, the head of the Southern Branch Office, who appealed on September 14, 200, the Busan High Court dismissed the appeal, while the head of the Southern Branch Office, who appealed on September 14, 2001, appealed Branch Office, appealed appealed on June 24, 2003.

G. Around December 23, 2004, the Plaintiff filed an objection with the director of the Nambu Business Center seeking revocation of the imposition of the sewage fee by November and December, 2004. On January 11, 2005, the director of the Nambu Business Center revoked ex officio the imposition of the sewage fee by November 1, 2004 against the Plaintiff, and refunded the sewage fee by November 26, 2005 to the Plaintiff on January 26, 2005.

H. On January 14, 2005, the Plaintiff filed a lawsuit seeking revocation of the imposition of the sewage fee against the head of the Nambu Office of Ulsan District Court 2005Guhap122 Decided October 2004 and December 2004. Accordingly, the Ulsan District Court sentenced Ulsan District Court on June 22, 2005 to revoke the imposition of the sewage fee for the portion of October 2004.

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff asserts that the plaintiff does not purify wastewater at the end of the sewage treatment plant operated by the defendant or discharge sewage through the public sewerage system, and that the plaintiff's death from discharging sewage does not fall under the public sewerage system by nature, and thus, the disposition of this case on the premise that the plaintiff uses the public sewerage system is unlawful. Since the defects are significant and obvious, and thus the defendant has gained profits from the amount equivalent to the sewage fee paid by the plaintiff without any legal ground. Thus, the defendant is obligated to return to the plaintiff the total sum of the sewage fee of 2,773,238,80 won paid from January 31, 200 to September 30, 2004.

B. Defendant’s assertion

As to this, the defendant manages the plaintiff's factory and death, and the sewage culvert laid on the lower part of the plaintiff's factory is a public sewerage system managed by the defendant, and the plaintiff discharges wastewater using the public sewerage system. Thus, the plaintiff constitutes a person who uses the public sewerage system. In full view of the relevant provisions such as the Ulsan Metropolitan City Ordinance on the Use of Sewerage, even if sewage is discharged directly to the coast or river, if the sewage is not pure cooling water or rainwater, the user fee should be imposed. The plaintiff has a duty to pay the sewage fee to the public sewerage under Article 24 of the Sewerage Act regardless of whether the sewage discharged from the public sewerage system flows into the sewage terminal. The plaintiff has a duty to pay the sewage fee to the plaintiff regardless of whether the sewage discharged from the public sewerage system flows into the sewage terminal. Thus, the disposition of imposition in this case is legitimate, and even if there is a defect in the disposition of imposition in the domestic affairs, the plaintiff's failure to seek a return of unjust enrichment to the defendant, unless the disposition of imposition in this case is revoked.

3. Determination

(a) Relevant statutes;

It is as shown in the attached Form.

B. Whether the instant disposition is lawful

According to Article 2 of the Sewerage Act, the term "sewage" means the total body of sewage conduits, sewage terminal treatment facilities, and other structures and facilities installed to eliminate or treat sewage, and the term "public sewerage" means the sewerage installed or managed by a local government. Thus, if a certain facility falls under a public sewerage system, it shall be an artificial structure or facility directly installed or directly installed by a local government for the purpose of the public sewerage system, and even if the public sewerage management agency established the commencement of the use of the public sewerage system, if the target sewerage does not have been acquired and managed by the local government for the right to use, etc. from the person directly installed or directly installed by the local government, it shall not be a public sewerage system. Considering the relevant provisions such as Article 21(1) of the Sewerage Act, Article 14-2(2) of the Enforcement Decree of the Sewerage Act, Article 19 of the Ulsan Metropolitan City Ordinance on the Use of Public Sewerage, it shall be interpreted that only the person who actually discharges sewage using the public sewerage as consideration for the use of the public sewerage system shall be liable to pay the user fee in accordance with the volume of the sewage (see, etc.

However, it is not sufficient to recognize that the sewage culvert buried on the road between the Plaintiff’s factory and the dead river corresponds to the public sewerage system installed and managed by the Defendant solely based on the statement and image of evidence Nos. 1 through 4-3 and evidence Nos. 3 through 9, and witness relocation testimony alone. There is no evidence to acknowledge otherwise, and there is no evidence to recognize that the death tank discharged wastewater by the Plaintiff is a sewerage system directly installed and managed by the Defendant. Thus, the above death test cannot be deemed as a public sewerage system, which is a public water. Meanwhile, even in a case where the sewage discharger in the drainage area violates the obligation of installing sewage or drainage facilities to flow sewage into the public sewerage pursuant to Article 24 of the Sewerage Act, it is difficult to find legal grounds to interpret that the Plaintiff is liable to pay the fee immediately regardless of the actual use of the sewage facility, and it is difficult to conclude that the Plaintiff is in violation of Article 24 of the Sewerage Act, and that the fine for negligence was directly installed and managed by the Defendant.

C. Whether the instant disposition is void as a matter of course

According to the above, the director of the Nambu Business shall charge the plaintiff a sewage fee by misunderstanding the fact that the plaintiff actually uses the public sewerage even though the plaintiff having the place of business within the drainage area did not actually use the public sewerage, which is in violation of the Sewerage Act, and thus the defect of the disposition of imposition is significant.

However, even if there is a serious defect in the imposition of the above sewage fee, if the defect is objectively unclear, the imposition disposition cannot be deemed null and void. Furthermore, in order to determine whether the above defect is objectively obvious, it should be the case where it is evident that the data, based on which the plaintiff misleads the facts, lack the appearance of the material, lack the authenticity of the establishment or the substance of the public sewerage objectively, or lack the authenticity of the establishment or the substance of the material objectively, and if it can only be found if it is possible to accurately investigate the facts, it cannot be said that such defect is apparent (see Supreme Court Decision 91Nu6863 delivered on April 28, 192). In this case, in light of the fact-finding that the plaintiff's workplace is located within the drainage area under the Sewerage Act; the plaintiff's use of the water supply facility, despite the fact-finding that the plaintiff did not receive the usage fee from the public sewerage facility before the exclusion of the flow of the public sewerage system; or the plaintiff did not notify the above fact to the warden of the imposition disposition of the above sewage fee for 13 years.

However, as seen earlier, in a lawsuit seeking revocation of the imposition of the sewage fee, which was filed against the head of the South-North Business Office, by installing the independent wastewater discharge facility and water pollution prevention facility in the vicinity of the Plaintiff’s business place, after collecting sewage, such as wastewater in the factory, and purifying it, and discharging the same into the river or the sea, such as a death river, etc., or the water being managed by the Defendant, it is difficult for the Supreme Court to recognize the above river as a public sewerage, and eventually, the above river cannot be deemed as a public sewerage as a public water. Accordingly, inasmuch as the sewage generated from each of the above wastewater treatment facilities is not discharged through the public sewerage system, the appeal by the head of the South-North Business Office should be dismissed (see Supreme Court Decision 2001Du8865, Jun. 24, 2003). Accordingly, it is clear that the remaining head of the South-North Business Office should not impose the sewage fee on the business place similar to the above facts, and thus, it becomes clear that the disposition of imposition in this case was objectively null and void.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the amount of 971,550,320 won in total, and the amount of 971,550,320 won in total, and the amount of 971,550,320 won in accordance with the disposition of imposition of the sewage fee after June 24, 2003, "the payment date of the attached Table" as to each money listed in the No. 43 through 57 in the "payment date of the same Table" as to the existence or scope of the obligation of the performance of this case from the payment date mentioned in the "payment date of the attached Table" as unjust enrichment, until July 6, 2005, which is the date of the decision of this case where it is deemed reasonable for the defendant to dispute about the existence or scope of the obligation of the performance of this case, 5% per annum under each Civil Act,

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-hee (Presiding Judge)