[1] In a case where an administrative disposition is based on an erroneous statutory interpretation, whether it can be determined that it constitutes a tort due to a public official’s intentional or negligent act (negative), and the standard for determining whether an administrative disposition loses objective legitimacy as the elements for establishing State liability

[2] In a case where the Minister of Environment requested the head of a metropolitan local government to take measures such as changing the method of reduction or prohibiting the use of a reduction device, on the grounds that the person obligated to reduce food wastes intends to reduce food wastes by himself/herself, he/she only uses the reduction device meeting the standards set forth in Article 14 [Attachment Table 5] 2 (c) (ii) of the former Enforcement Rule of the Wastes Control Act, and that the person obligated to reduce the amount of waste who uses the reduction device that is not in compliance with the above standards is unable to use the device, such as sewage, etc. along with water, the case holding that the judgment below which recognized the State's liability is erroneous in misapprehending legal principles

[1] In order to establish liability for damages of the State or a local government in relation to an administrative disposition, the public official in charge of administrative disposition must have intention or negligence in the performance of his/her duties, and the existence of negligence of the public official should be determined based on the objective duty of care required for the general public. In addition, even if any administrative disposition is based on an erroneous statutory interpretation, it cannot be determined immediately that the administrative disposition constitutes a tort because it was caused by the public official’s intentional or negligent act, and the State’s liability requirement under Article 2 of the State Compensation Act is satisfied to the extent that it can be recognized that an administrative disposition was lost objectively justifiable by violating the objective duty of care. Whether an objective legitimacy has been lost should be determined by taking into account various circumstances, such as the form and purpose of the administrative disposition that constitutes an infringement, the degree of involvement of the victim, the type of the infringed benefit, and

[2] In a case where the Minister of Environment intends to reduce food waste by himself/herself to the head of a metropolitan local government, he/she requested the State to take measures such as change of reduction method and prohibition of use against the person obligated to reduce the amount of food waste since the person obligated to reduce the amount of food waste is unable to use only a reduction device meeting the standards under Article 14 [Attachment Table 5] 2 (c) (ii) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 295 of Aug. 4, 2008), and the person obligated to reduce the amount of waste who discharges waste through sewage with water is not in use with water, and the person obligated to reduce the amount of waste who uses the reduction device that does not meet the above standards requested the State to seek compensation against the State, the case holding that the court below erred by misapprehending the legal principles, in light of the fact that the above provision is limited and large, and that the food waste disposal method by the person obligated to reduce the amount of food waste is not a method prescribed under the above provision.

Article 2 of the State Compensation Act, Article 14 [Attachment 5] subparagraph 2 (c) (ii) (see current Article 14 [Attachment 5] subparagraph 2 (c) (iii) and (iii) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 295 of August 4, 2008), Article 10 subparagraph 3 (see current Article 10 subparagraph 4) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 305 of October 21, 2008)

Gai Environment Co., Ltd. (Bae & Yang LLC, Attorneys Park Young-young et al., Counsel for the defendant-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Kim Dong-dong, Counsel for defendant-appellant)

Seoul High Court Decision 2014Na2005133 Decided January 22, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiff's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. In order to establish liability for damages of the State or a local government in connection with an administrative disposition, the public official in charge of the relevant administrative disposition must either intentionally or negligently perform his/her duties, and the existence of negligence in the public official should be determined based on the objective duty of care required for general public officials (see, e.g., Supreme Court Decisions 9Da70600, May 12, 2000; 2010Da104805, Jan. 24, 2013). In addition, even if an administrative disposition was based on erroneous statutory interpretation, it cannot be determined that the administrative disposition directly constitutes tort due to the public official’s intentional or negligent act, and it cannot be determined that the administrative disposition was deemed to have lost objective legitimacy by breach of objective duty of care. Whether it has lost objective legitimacy should be determined based on the following circumstances: (a) whether there is a substantial reason for imposing liability on the State or a local government, such as the attitude and purpose of the administrative disposition, the victim’s involvement, degree of involvement, and degree of loss, etc.

B. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s disposal of food wastes to the head of each metropolitan local government on March 13, 2008 (hereinafter “instant regulation”) was unlawful on the following grounds: (i) the Plaintiff’s disposal of food wastes before amendment by Ordinance of the Ministry of Environment (amended by Ordinance of the Ministry of Environment No. 295, Aug. 4, 2008; hereinafter “former Enforcement Rule”) under subparagraph 2(c)(ii) of [Attachment 5] of the former Enforcement Rule of the Wastes Control Act by means of heating less than 25% of the quantity of by-products; (ii) the Defendant’s disposal of food wastes to the extent that it appears to be 40% of the quantity of by-products by means of compost, feedation, or fermentation; and (iii) the Plaintiff’s disposal of food wastes to the extent that it is deemed that the Plaintiff’s disposal of such wastes by-products was not permissible on the following grounds: (iii) the Plaintiff’s disposal of such wastes by-products, etc.

Furthermore, the lower court determined that it is reasonable to view that the Defendant was negligent or negligent in interpreting the instant restriction provision even though it could not be readily concluded that the instant processing period was illegal, on the grounds that: (a) the Minister of Environment did not reply to the fact that the instant processing period was illegal; (b) the Minister of Environment requested the prohibition of the use of the instant processing machine before the enforcement of the instant new provision; (c) the Ministry of Environment did not prohibit the use of the instant processing machine before making a request for the instant measure; and (c) the head of Gwanak-gu in Seoul Special Metropolitan City and the Information and Communications Department Radio Research Institute recommended the use of the instant processing machine; and (d) the Seocho-gu, Dongdaemun-gu, and Yongsan-gu presented the Dissenting Opinion regarding the new provision to restrict its use in light of the effects of the instant processing machine.

C. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below.

The following circumstances acknowledged by the reasoning of the judgment below and the record are as follows: (i) the restriction provision of this case applies to the disposal of food wastes by means of self-reduction in accordance with the relevant regulations under Article 16 of the former Enforcement Rule of the Wastes Control Act; (ii) the disposal method of food wastes by the disposal method of this case is not the method prescribed by the restriction provision of this case; and (iii) there is no flexible interpretation and precedent to the effect that the above disposal method of food wastes can be used by the above disposal operator at the time of the request for the measure of this case; (iv) there is no appearance that the disposal method of food wastes by the disposal of this case can be properly used by the above disposal business operator; and (iii) the request for the measure of this case is difficult to conclude that the Minister of Environment failed to take objective measures such as the removal of wastewater by the disposal method of food wastes by the disposal method including the disposal method of this case, and there is no need to regulate the water pollution due to the occurrence of problems, and thus, it is difficult to conclude that the request of this case was unlawful by the Minister of Environment.

Nevertheless, the court below held that the request for the measure of this case is unlawful, and that the defendant's intention or negligence is recognized. It erred by misapprehending the legal principles on the State's tort liability.

2. Plaintiff’s ground of appeal

The plaintiff's ground of appeal is that the scope of damages recognized by the court below is unfair on the premise that the defendant is liable for tort due to the request for the measure of this case, and as long as the judgment of the court below which acknowledged tort liability due to the request for the measure of this case is reversed, the above ground of appeal as above is not acceptable

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)