In cases where a project operator, who is another participant, bears the cost of public sewerage construction due to other acts pursuant to Article 32(2) of the Sewerage Act, whether it is possible to impose an amount borne by the burden under Article 32(4) of the same Act separately (negative), and the meaning of sewage in the basic project or the working design report for a project corresponding to such other acts

The purpose of Article 32(2) of the Sewerage Act and Article 32(2) of the Ordinance on Sewerage Use is to have other actors bear all the expenses incurred in the construction of the public sewerage necessary for the public sewerage system, which is caused by other acts, as regards the expenses incurred in the construction of the public sewerage necessary for the treatment of sewage expected to be caused by the project corresponding to the other acts, the project implementer, who is another participant, is not entitled to bear the expenses incurred in the construction of the public sewerage necessary for the disposal of the sewage. As such, with regard to the part that is anticipated to be caused by the project, and that the project implementer bears the expenses incurred in the construction of the public sewerage necessary for the disposal of the sewage, the charges borne by the project implementer under Article 32(4) of the same Act and Article 32(4) of the same Act and the Ordinance on Sewerage Use, including the use of the land created by the project, shall be included in the volume anticipated to occur when the project is implemented in accordance with the project plan, and it shall not be predicted accurately from the individual land created by the project.

Article 32 of the Sewerage Act

Onnuri Construction Co., Ltd. (Seoul Law Firm, Attorney Lee Young-soo, Counsel for the plaintiff-appellant)

Jinhae Market (Law Firm Samok, Attorneys Jeong Young-young et al., Counsel for defendant-appellant)

Busan High Court Decision 2002Nu5665 delivered on May 30, 2003

The judgment below is reversed, and the case is remanded to Busan High Court.

1. After compiling the selected evidence, the court below found the facts as stated in its reasoning, and determined that the project implementer, after completing the project corresponding to the "other activities" under Article 15 (2) 2 (ii) of the Ordinance on the Use of Jinhae Sewerage (Ordinance No. 1813, Dec. 29, 200; hereinafter referred to as the "Ordinance") with the delegation of Article 32 (2) and (5) of the Sewerage Act (hereinafter referred to as the "Act"), if the estimated amount of sewage to be generated from the building constructed in the above land exceeds the estimated quantity of the above land to be generated from the above land at the time of the project, the estimated amount of the above excess should be deemed to be caused by the construction of the above building not by the above other activities, but by the construction of the above building, it is reasonable for the project implementer to accurately estimate the estimated quantity of the land generated from the building owner at the time of the project to the extent that it is not possible for the purchaser of the land to construct the building at the time of the project to the above average quantity of the construction project.

2. However, the lower court’s determination is difficult to accept for the following reasons.

Article 32(2) of the Act and Article 15(2)2(2)(2)(2) and (3) of the Ordinance provide that all the expenses for the construction of the public sewerage required due to other acts shall be borne by other persons who are the implementers of the relevant project while listed in other acts in the industrial site and industrial complex development projects. The amount of load anticipated from such other acts shall be calculated based on the "number on the basic plan or the working plan of the relevant project". Article 32(4) of the Act and Article 15(2)4 and (3) of the Ordinance of this case provide that if a person who newly constructed or extended facilities or buildings within the sewage treatment area after the commencement of the use of sewage treatment facilities fails to install sewage purification facilities within the sewage treatment area, it shall be included that the amount borne by the implementers of the relevant construction project shall not be included in the amount calculated by the methods of calculating sewage generation by the use of the building publicly notified by the Minister of Environment. In light of the provisions of the relevant Act and subordinate statutes, it shall not be deemed that the project implementer is obligated to separately bear the expenses for other construction works.

Nevertheless, without examining whether the building of this case, which is constructed on the land created by the project in other acts, exceeds the prescribed size and use in the project plan, the court below's determination legitimate disposition of this case is erroneous by misapprehending the legal principles as to the burden borne by the Defendant under Article 32 of the Act and Article 15 of the Ordinance of this case, and thereby affecting the conclusion of the judgment, without examining whether the building of this case, which is constructed on the land created by the project in other acts, exceeds the prescribed size and use in the project plan.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)