In a case where the Seocho-gu and Gangnam-gu concluded an agreement on the apportionment of the cost of the maintenance and management of rainwater that occurred within the jurisdiction of Gangnam-gu Seoul Metropolitan Government and that the Gangnam-gu should bear part of the cost of the maintenance and management in accordance with the principle of the burden of the polluter, the case holding that the above agreement is valid even if it did not obtain the resolution of the Gangnam-gu Seoul Metropolitan Council.

In a case where Seocho-gu and Gangnam-gu concluded an agreement on the apportionment of the cost of the maintenance and management of rainwater that occurred within the jurisdiction of Gangnam-gu Seoul Metropolitan Government and that the Seocho-gu and Gangnam-gu shared part of the cost of the maintenance and management in accordance with the principle of the burden of the polluter, the case held that the above agreement was valid even if it obtained a resolution of Gangnam-gu pursuant to Article 44 (1) of the former Local Finance Act (amended by Act No. 8852 of Feb. 29, 2008) and the former Seoul Metropolitan Government Ordinance on the Use of Sewerage (amended by Act No. 8819 of Dec. 27, 2007) and the head of the Seocho-gu Seoul Metropolitan Government Ordinance on the Use of Sewerage (amended by Ordinance No. 4642 of May 29, 2008), and the expenditure budget compiled by the Gangnam-gu Council in relation to the rainwater pump head exceeds the share of Gangnam-gu under the agreement, and thus the above agreement was not valid even if it obtained a resolution of Gangnam-gu.

Article 44(1) of the former Local Finance Act (amended by Act No. 8852 of Feb. 29, 2008); Article 3(2), Articles 18, 57, and 58 of the former Sewerage Act (amended by Act No. 8819 of Dec. 27, 2007); Article 5 of the former Ordinance on Sewerage Use (amended by Ordinance No. 4642 of May 29, 2008)

Seocho-gu Seoul Metropolitan Government (Attorney Lee Jae-chul, Counsel for defendant-appellant)

Gangnam-gu Seoul Metropolitan Government (Attorney Lee Sung-soo, Counsel for defendant)

April 19, 2012

1. The defendant shall pay to the plaintiff 344,020,000 won with 5% interest per annum from August 5, 2011 to September 30, 201, and 20% interest per annum from the next day to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff manages the “locked rainwater pumps” located in Seocho-gu Seoul Metropolitan Government Pungwon-dong and the “sain rainwater pumps” located in Seocho-gu Seoul Metropolitan Government Seocho-gu Seocho-gu (hereinafter “instant rainwater pumps”).

B. Excellent note 1) The basin area and Note 2) the area of benefits flowing into each rainwater pumps of this case are as follows:

The table classification (unit: h) contained in the main text, Defendant 172.3 (82%) 62.3 (82%) 149.92 (8.3%) 0 (0%) 172.3%) 62.3 (82%) 149.2 (8.3%) 0 (0%) 20%) in the area mutually advantageous to the basin area, the area mutually advantageous to the river basin area, the basin size of the 1669.79.4 (18%) 38 (18%) 19.7 (18%) 19.7 (19.7%) 19.7%)

C. On November 23, 2007, the Plaintiff and the Defendant entered into an agreement on the apportionment of the cost of maintaining and managing rainwater pumps of this case and other necessary matters (hereinafter “instant agreement”). The main contents are as follows.

○ The Plaintiff and the Defendant consult with the Plaintiff to share part of the cost of the maintenance and management of rainwater pumps in accordance with the principle of the polluter’s burden with respect to rainwater that is generated within the jurisdiction of the Defendant and is treated by the Plaintiff as the rainwater pumps. In this regard, the agreement is concluded as follows.

○ Article 2 (Sharing of Maintenance Expenses)

(1) The cost of the maintenance and management of rainwater pumps means the total cost required for the operation of rainwater pumps for the pertinent year (including personnel expenses, electricity charges, taxes and public charges, repairing facilities, substantial repair expenses, etc.).

② The maintenance and management costs borne by the Defendant shall be calculated by multiplying the maintenance costs by the percentage (82% of the raw rainwater pumps and 88.3% of the ordinary rainwater pumps) of the area under the jurisdiction of the Defendant to the basin area for the corresponding year of the flood pumping station (from April 15 to October 15) by the Plaintiff’s settlement of accounts.

○ Article 3 (Time to Share Maintenance Expenses)

The time of sharing the maintenance expenses to be borne by the defendant under Article 2 shall be applied from 2007 (the sharing ratio of the single maintenance expenses shall be 30% in 2007, 60% in 2008, and 100% in 209).

§ 4. Method and time of paying maintenance costs

(1) The defendant shall pay the maintenance expenses for the pertinent year to the designated institution in accordance with the notice of payment of contributions.

(2) The time to pay contributions for maintenance and management expenses under Article 2 shall be notified to the defendant by December 15 each year, and the defendant shall pay the contributions by the payment deadline in accordance with the notice.

D. The Plaintiff calculated and notified the Defendant of the following allotted charges in accordance with the instant agreement. Of them, the amount notified in the year 2010 shall be the sum of KRW 266,09,000 in the amount calculated in the year 2009, plus KRW 77,925,00 in the amount calculated in the year 209.

(unit: source)

본문내 포함된 표 구분 원고 피고 피고 분담비율 산출액 분담액 분담액 고지액 합계 210,109,000 1,111,127,000 872,205,000 ？ ？ 2007년 28,551,000 169,304,000 50,000,000 30% 피고 분담액 x 30% = 50,791,000 2008년 59,118,000 299,024,000 135,000,000 60% 피고 분담액 x 60% = 179,414,000 2009년 72,540,000 376,704,000 343,185,000 100% ？ 2010년 49,900,000 266,095,000 344,020,000 100% ？

E. The Defendant paid each of the contributions in 2007, 2008, and 2009 notified as above to the Plaintiff, but did not pay KRW 344,020,000 to the notified amount in 2010.

F. On September 26, 201, the Plaintiff filed the instant lawsuit against the Defendant, claiming for the payment of the said KRW 344,020,000, which was not paid by the Defendant, and damages for delay thereof.

[Reasons for Recognition]

○ Facts without dispute, entry of Gap evidence 2, purport of the whole pleadings

2. Relevant statutes

It is as shown in the attached list.

3. The defendant's assertion

A. According to Article 61(1) of the former Sewerage Act (amended by Act No. 8819, Dec. 27, 2007; hereinafter “the Sewerage Act”), the instant agreement was concluded on the basis of the principle of the burden of the polluter. The burden of borne by the owner of a building, etc. is not naturally imposed on the local government having jurisdiction over the superior mone area. The former Seoul Special Metropolitan City Ordinance on the Use of Sewerage (amended by Act No. 4642, May 29, 2008; hereinafter “Seoul Special Metropolitan City Ordinance on the Use of Sewerage”) does not have any provision that can share the cost of a neighboring local government, which is not a local government, other than a local government, where the place where the rainwater pump is installed, and thus, the instant agreement concluded on the basis of the principle of the burden of the polluter is null and void,

B. Even if the principle of the burden of proof is applied, Article 61(3) of the Sewerage Act provides that “the calculation standard, method of collection, and other necessary matters shall be determined by the Municipal Ordinance of the pertinent local government,” and the instant agreement is not a municipal ordinance but does not exist any Municipal Ordinance that serves as the basis for the conclusion of the instant agreement, and thus, the instant agreement is null and void.

C. Article 39(1) of the former Local Autonomy Act (amended by Act No. 8435 of May 17, 2007) provides that “any obligation other than those prescribed by the statutes and municipal ordinances or waiver of rights other than the budget” shall be decided by the local council as a resolution of the local council. Article 44(1) of the former Local Finance Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “Local Finance Act”) provides that “When a local government concludes a contract or performs any other act that may cause the burden of the obligation to the local government, it shall obtain prior resolution from the local council with the budget.” In concluding the instant agreement, the instant agreement is null and void since it did not go through the resolution of the Defendant Council.

4. Determination

(a) An act conducted by the head of a local government without a resolution by the Gu Council;

Article 44(1) of the Local Finance Act provides that "The head of a local government shall obtain prior approval from the local council when concluding a contract or performing other acts which may cause the local government to assume obligations, except for those stipulated by Acts and subordinate statutes or municipal ordinances, the total amount of expenditure budget, specified carryover fund, or continuing expenditure."

In other words, if the head of a local government concludes a contract which will cause the local government to bear the obligation by law or municipal ordinance, ② a contract which will cause the local government to bear the obligation, but the expenditure of the budget is within the scope of the total expenditure budget, the act is valid even if it did not obtain prior resolution from the local council.

B. Whether the conclusion of the instant agreement is based on statutes or municipal ordinances

1) Details of the relevant legislation

A) As to the responsibility for managing public sewerage, such as the rainwater pumps of this case, Article 3(2) of the Sewerage Act provides that “the head of a local government shall be responsible for properly treating sewage and foul waste generated within his/her jurisdiction through the installation and management of a public sewerage system.” Article 18(1) of the same Act provides that “the head of a competent local government shall be the head of a competent local government,” and Article 18(2) of the same Act provides that “the head of a local government shall be the head of a competent local government, if public sewerage systems extend over the jurisdiction of at least two heads of local governments or there are other special reasons, the head of a local government shall be the public sewerage

B) As to the cost of managing public sewerage, Article 57 of the Sewerage Act provides that “the cost of public sewerage shall be borne by the local government to which the relevant public sewerage management authority belongs, except as otherwise expressly provided for in this Act or other Acts.” Article 58(1) of the same Act provides that “the public sewerage management authority under the provisions of Article 18(2) may share all or part of the cost of installing, altering, repairing, and maintaining the public sewerage within the scope of its benefits to the local government that benefits from the public sewerage.” Article 18(2) provides that “the relevant local government shall consult with each other regarding the cost sharing under the provisions of paragraph (1).” Article 57(3) provides that “If the consultation under the provisions of paragraph (2) fails to reach an agreement under the provisions of paragraph (2), the relevant local government may request a ruling to the competent Mayor/Do Governor,” and Article 18(5) of the same Act provides that “If the competent local government that benefits from the public sewerage system fails to reach an agreement under the provisions of paragraph (3).”

C) Meanwhile, Article 5 of the Seoul Metropolitan Government Ordinance on Sewerage Use provides that "the head of the Gu who manages roads or riverbeds of public sewerage installed at the boundaries of the Seoul Special Metropolitan City and the Gu shall manage the roads or riverbeds, and the head of the Gu who has received many benefits from the public sewerage installation area and the benefits from the public sewerage installation area shall be in accordance with the attached Table 4," and the [Attachment Table 4] provides that the Seongbuk-gu head of Seongdong-gu rainwater pumps shall be managed respectively from Gangdong-gu, the head of Seongdong-gu, and the head of the new rainwater pumps in Seongdong-gu, the head of Seongdong-gu, and the head of the Seongdong-gu, Dongdaemun-gu, shall be managed from Dongdaemun-gu, and the new rainwater pumps in Seongdong-gu, the area where the rainwater pumps are installed and the area beneficiaries benefit therefrom are different.

2) Determination

In light of the above, Article 58 (3) and (5) of the Sewerage Act provides that the relevant local governments shall be deemed to have agreed upon when mutual agreement between the relevant local governments is not reached, it is difficult to see that the above provision is based on the fact that the responsibility for managing the public sewerage, such as the rainwater pumps of this case, is the head of the competent local government under the Sewerage Act, ② the local governments that benefit from the public sewerage can share the cost of managing the public sewerage within the scope of their benefit; ③ the local governments that benefit from the public sewerage can share the cost of managing the public sewerage within the scope of their benefit; ③ the provisions of Article 58 (3) and (5) of the Sewerage Act provide that the local governments shall be deemed to have agreed upon when mutual agreement between the relevant local governments is not reached, and it is difficult to see that the above provisions are premised on the cases where the local council did not go through a resolution or a resolution was rejected; ④ the Seoul Special Metropolitan City Ordinance on the Use of the Sewerage Act (hereinafter referred to as the "Ordinance on the Management of the Public Sewerage").

C. Whether the Defendant’s debt burden due to the conclusion of the instant agreement is within the total amount of the expenditure budget

1) When the head of a local government intends to perform an act which causes the local government to bear obligations, if the expenditure of the budget is within the scope of the total amount of the expenditure budget, such act is valid even without obtaining prior resolution from the local council (see Supreme Court Decision 9Da71597, Jun. 29, 2001). Thus, even though each of the above provisions of the Family Sewerage Act and the Seoul Metropolitan Government Sewerage Use Ordinance cannot be the basis for the instant agreement that was concluded without the resolution of the defendant Council, if the defendant Council organized the expenditure budget under the instant agreement, the instant agreement cannot be deemed null and void within the scope of the total amount of the expenditure budget.

2) Considering the overall purport of each statement and argument of Gap evidence Nos. 19 through 22 (including various numbers), the defendant Gu Council shall compile 3,549,273,000 won as the charges between local governments in the revised supplementary budget of 2008 and allocate 63,360,000 won as the charges between local governments, and 72,324,000 won as the charges among them to the general rainwater pumps, and 72,324,000 won as the charges among them. The defendant Council shall compile 3,212,236,00 won as the charges between local governments in the budget of 209; the defendant Council shall compile 18,83,461,00 won as the charges among the general accounts and special accounts of 2010; the defendant Council shall compile 30,000 won as the charges among the rainwater pumps; the defendant Council shall compile 19,360,000 won as the charges among the general accounts of 209,3019,290.

D. Sub-committee

1) The instant agreement is valid as it is based on the Sewerage Act and the Seoul Metropolitan Government Ordinance on Sewerage Use, and even if the said Ordinance cannot be seen as the basis of the instant agreement, insofar as the Defendant Gu Council annually compiled a budget exceeding the amount of contributions under the instant agreement, it is also valid.

2) Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 344,020,00 of the notice amount in the year 2010 under the instant agreement and damages for delay at each rate of KRW 5% per annum prescribed by the Civil Act from August 5, 2011 to September 30, 2011 on the record that the Plaintiff is the delivery date of the copy of the instant complaint from August 5, 201, and KRW 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the full payment date.

5. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Sung-ho (Presiding Judge) (Presiding Judge)

1) The unbunddy collected by subdivision receipt refers to the area of the zone in which rainwater or sewage flows into a certain drainage system with the area forming the basis for the calculation of the volume of the water from the territory or sewerage system.

2) The construction of rainwater pumps refers to the area in which land use is increased and the land price in the area is increased due to the increase in the rate of land use, as land habitually affected by the construction of rainwater pumps has no usefulness with any other area.