[1] Whether a statute that provides for the requirements for imposing and collecting taxes or charges and the provisions of an order or rule based on delegation thereof shall be either reasonable and clear (affirmative) / Whether a provision on taxes or charges may be deemed unconstitutional because it lacks clarity in the context of the legislative intent, overall system, and content of the relevant statute (negative)

[2] In cases where the head of the Gu, etc. calculates the purchase cost of the site for the housing site development project specified in the housing site development project district development plan, in consideration of the opinions of the project implementer who intends to develop the apartment complex or housing site, by applying the development cost of the housing site development project district in order to impose the charges for the installation of waste disposal facilities, whether such calculation is unlawful (negative in principle)

[3] Where the head of the Gu, etc. calculates the installation cost on the basis of average installation cost per ton of completed facilities in the metropolitan area at the time of receipt of a payment plan corresponding to the installation cost of waste disposal facilities by a multi-family housing complex or a project implementer who intends to develop a housing site, whether such calculation is unlawful (negative in principle), and whether Article 7 (2) of the Gangnam-gu Seoul Metropolitan Government Ordinance on the Collection of Installation Cost of Waste

[1] Even if the requirements and procedures for the imposition and collection of taxes or charges were prescribed by the Act, since the contents of the provisions may cause arbitrary interpretation and enforcement of the imposing authority if they are excessively abstract and unclear, the provisions of the Act or the orders and rules following the delegation thereof shall be reasonable and clear. However, since the provisions of the Act have generality and abstractness, and thus the meaning through the interpretation as a supplementary action of the judge may be embodied and clear. Thus, if the meaning of the provisions concerning taxes or charges can be clear in light of the legislative purport, overall system, contents, etc. of the relevant Acts and subordinate statutes, it shall not be deemed as unconstitutional even if they lack clarity.

[2] The former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facilities Promotion Act”); the former Enforcement Decree of the Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Presidential Decree No. 25165, Feb. 11, 2014); and the Gangnam-gu Seoul Metropolitan Government Ordinance on the Collection of Expenses for Installation of Waste Disposal Facilities and the Establishment and Operation of Funds (amended by Ordinance No. 1016, Mar. 4, 2011) provides for detailed provisions on the standards for calculating expenses for installation of waste disposal facilities (hereinafter “the amount corresponding to the installation cost”), while providing for detailed provisions on the basis of the development cost of a housing site development project district (hereinafter “housing site development cost”), which is the basis for calculating the installation cost of a housing site site, the housing site development project implementer is obligated to submit a plan to the head of the Gu before the commencement.

Therefore, in cases where the head of the Gu, etc. calculated the purchase cost of the site for facilities by applying the cost of housing site development stated in the payment plan in respect of the project operator’s opinion, barring special circumstances, such as the sudden change in the cost of housing site development at the time of imposing the charge, etc., the calculation of the purchase cost of the site for facilities cannot be deemed unlawful, unless there

In addition, although Article 6 (2) 3 of the above Ordinance does not expressly state the point of time for the cost of housing site preparation, the above provision is deemed to be the time when a payment plan is submitted, but it can be interpreted that the competent administrative agency has made it possible to flexibly choose the base point of time according to specific cases in order to calculate the cost of housing site purchase. The cost of housing site preparation is only one of the basic data to estimate and assess the cost of housing site purchase, and the above Ordinance stipulates in detail the method of calculating the cost of housing site purchase in accordance with the Waste Promotion Act and the above Ordinance. Thus, the above provision does not violate the principle of clarity because it is difficult for the imposing administrative agency to arbitrary interpretation and execute, or it is unclear to the extent to harm the predictability of the criminals.

[3] Article 4(3) of the Enforcement Decree of the Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facilities Promotion Act”) provides for the calculation of the unit price per ton of the expenses incurred in installing incineration facilities on a scale of 200 tons per day disposal capacity for the first incineration facilities, and for the second food waste disposal facilities, “the unit price per ton of the expenses incurred in installing compost and feed-making facilities on a scale of 30t per day disposal capacity” as the basis of the “Ordinance on the Installation and Operation of Waste Disposal Facilities and Funds” (amended by Presidential Decree No. 25165, Feb. 11, 2014; Presidential Decree No. 25165, Mar. 4, 2011; Presidential Decree No. 25688, Feb. 25, 2017).

In light of the contents and structure of the relevant provisions, “the cost of installing each ton of facilities in the metropolitan area scheduled to be completed in the relevant year” is only one of the basic materials to estimate and assess the cost of installing facilities. Even if the head of the Gu, etc. calculates the cost of installing facilities based on the average installation cost per ton of facilities in the metropolitan area completed at the time of receipt of the payment plan, barring special circumstances, such as the occurrence of a sudden change in basic materials and the substantial unreasonable measure not reflecting such circumstances, the calculation of the cost of installing facilities cannot be deemed unlawful. Furthermore, such interpretation can be made by means of a normal interpretation in relation to the “the relevant year” as stipulated in Article 7(2) of the above Ordinance,

[1] Articles 12 and 59 of the Constitution / [2] Article 12 of the Constitution of the Republic of Korea; Article 6(1) and (2) of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Act No. 12077, Aug. 13, 2013); Article 4(1), (2), (3), and (4), and (5) of the Enforcement Decree of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Presidential Decree No. 25165, Feb. 11, 2014); Article 18-2(1) of the former Housing Site Development Promotion Act (Amended by Act No. 11690, Mar. 23, 2013); Article 12 of the Constitution of the Republic of Korea; Article 6(1) and (2) of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs; Article 16(14)

[1] Supreme Court Decision 2005Du2612 decided July 26, 2007 (Gong2007Ha, 1379)

Seoul Housing Urban Corporation (former Name: EPP Law Firm LLC, Attorneys Park Gi-ero et al., Counsel for the plaintiff-appellant)

The head of Gangnam-gu Seoul Metropolitan Government (Law Firm Squa, Attorneys Lee In-type et al., Counsel for defendant-appellant

Seoul High Court Decision 2015Nu34146 decided November 18, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to whether the calculation of purchase cost of the facility site is unlawful (Ground of appeal No. 1)

A. Even if the provisions of the Act stipulate the requirements and procedures for the imposition and collection of taxes or charges, since the contents of the provisions may cause arbitrary interpretation and enforcement of the imposing authority if they are excessively abstract and unclear, the provisions of the Act or the orders and rules following the delegation thereof shall be meaningful and clear. However, since the provisions of the Act have generality and abstractness, and thus their meaning may be embodied and clear through the interpretation as a supplementary action of the judge as a supplementary action of the law. Thus, if the meaning of the provisions concerning taxes or charges can clearly be made in light of the legislative purport, overall structure and contents of the relevant Acts and subordinate statutes, it cannot be deemed as unconstitutional because they lack clarity (see Supreme Court Decision 2005Du2612, Jul. 26, 2007).

B. According to Article 6(1) and (2) of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facilities Promotion Act”), Article 4(1) and (2) of the Enforcement Decree of the Act on the Promotion of Installation of Gu Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Presidential Decree No. 25165, Feb. 11, 2014; hereinafter “Enforcement Decree of the Waste Facilities Promotion Act”), a person who intends to develop a multi-family housing complex or housing site with a development area of at least 30,00 square meters (hereinafter “project operator”) shall pay to the head of the Gu, etc. having jurisdiction over the relevant area the amount corresponding to the expenses for installation of the relevant multi-family housing complex or housing site or for installing food waste disposal facilities to treat wastes generated from the relevant apartment complex or housing site.

According to Article 4(3) and (4) of the Enforcement Decree of the Waste Facilities Promotion Act, the amount of installation costs shall be calculated by dividing the cost for the purchase of the site for facilities and the cost for the installation of facilities, but other necessary matters shall be prescribed by Municipal Ordinance of the autonomous Gu, etc. having jurisdiction over the area.

Article 6(2)3 of the Gangnam-gu Seoul Metropolitan Government Ordinance on the Collection of Expenses for Installation of Waste Disposal Facilities and the Establishment and Operation of Funds (amended by Ordinance No. 1016, Mar. 4, 2011; hereinafter “instant Ordinance”) that set the standards for calculating the amount of the installation costs upon delegation shall be calculated as “the amount obtained by multiplying the purchase cost of the site for facilities by the area necessary for the cost of the development of the housing site development project (hereinafter “housing site development cost”)” if the site is not finalized.

Meanwhile, Article 4 (5) of the Enforcement Decree of the Waste Facilities Promotion Act provides that a person who intends to pay the corresponding amount of installation costs shall submit the payment plan to the head of the Gu having jurisdiction over the relevant area before the commencement of the development project, and the head of the Gu, etc. who has received the payment plan shall confirm the appropriateness thereof and notify the

C. As can be seen, the Act on the Promotion of Waste Facilities and the Ordinance of this case do not stipulate any provision on the base point of time for the cost of creating a housing site, which serves as the basis for calculating the corresponding amount for the installation cost, while imposing the duty to submit a payment plan before the commencement of the construction project on the project implementer, and the head of the Gu, etc. shall determine the amount to be paid, etc. after confirming the appropriateness of the payment plan submitted. Accordingly, the relevant Act and subordinate statutes naturally allow the calculation of the corresponding amount for the installation cost based on the basic data at the time of submission of the payment plan. Furthermore, Article 18-2(1) of the former Housing Site Development Promotion Act (amended by Act No. 11690, Mar. 23, 2013) provides that the cost of constructing a housing site shall be publicly announced by the

Therefore, in cases where the head of the Gu, etc. calculated the purchase cost of the site for facilities by applying the cost of housing site development stated in the payment plan in respect of the project operator’s opinion, barring special circumstances, such as the sudden change in the cost of housing site development at the time of imposing the charge, etc., the calculation of the purchase cost of the site for facilities cannot be deemed unlawful, unless there

In addition, although Article 6 (2) 3 of the Ordinance of this case does not expressly state the point of time for the cost of housing site preparation, the above provision is deemed to be the time when the submission of the payment plan for the cost of housing site preparation is made, it can be interpreted that the competent administrative agency has made it possible to flexibly choose the standard point of time according to specific cases in order to calculate the cost of housing site purchase. The cost of housing site preparation is only one of the basic data for estimating and assessing the cost of housing site purchase, and the waste facility promotion Act and the Ordinance of this case stipulate in detail the method of calculating the cost of housing site purchase. Thus, the above provision does not violate the principle of clarity by making it unclear to the imposing administrative agency about arbitrary interpretation and execution or to the extent that it may undermine the predictability of the offender.

D. On December 5, 2011, the lower court determined that, without reflecting the fixed cost of development after the submission of the payment plan, the Defendant’s measure of calculating the purchase cost of the site by applying the construction cost calculated in the payment plan as it is cannot be deemed unlawful, considering the following: (a) although the Plaintiff submitted to the Defendant a “written opinion on the imposition of charges” on December 20, 201, which was immediately before the instant disposition; (b) the construction cost of the housing site was reduced compared to the payment plan at the time of the instant disposition; and (c) there was no evidence suggesting that there was any error or error in the construction cost of the instant project district at the time of the submission of the payment plan; or (d) there was no evidence suggesting that there was any error or error in the construction cost of the housing site calculated by the Plaintiff in the details of the payment plan.

E. Examining the foregoing legal principles and records, the lower court’s determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the principle of clarity and the calculation of purchase cost of the formation site, or by exceeding the bounds of

2. As to whether the calculation of installation costs of facilities is illegal (ground of appeal No. 2)

A. Article 4(3) of the Enforcement Decree of the Waste Facilities Promotion Act under the delegation of Article 6(1) of the Waste Facilities Promotion Act provides that with respect to the installation cost of facilities, ① for incineration facilities, “the cost per ton of the cost for the installation of incineration facilities at a scale of 200 tons per day,” and ② for food waste disposal facilities, “the cost per ton of the cost for the installation of compost and feed-making facilities at a scale of 30t per day” is calculated on the basis of “the cost for the installation of compost and feed-making facilities at a scale of 30t per day.” Furthermore, Article 7(2) of the instant Ordinance provides that the cost for the installation of facilities at issue shall be calculated on the basis of the average ton of the facilities in the metropolitan area where the construction or completion is scheduled for the pertinent year, and the cost for the installation at issue shall apply to the average ton of the two facilities recently completed in the

B. In light of the content and structure of such relevant provisions, “the average installation cost per ton of facilities in the metropolitan area scheduled to be completed in the relevant year” is only one of the basic materials to estimate and assess the installation cost, barring special circumstances, such as that the head of the Gu, etc. calculated the installation cost on the basis of the average installation cost per ton of facilities in the metropolitan area completed at the time of receipt of the payment plan, the calculation of the installation cost cannot be deemed unlawful, barring special circumstances, such as the occurrence of a sudden change in basic materials, and that measures not reflecting such circumstances are considerably unreasonable. Furthermore, this interpretation can be made by a usual interpretation in relation to “the pertinent year” as stipulated in Article 7(2) of the instant Ordinance, and therefore,

C. The lower court determined that: (a) the Plaintiff’s written opinion presented immediately before the instant disposition applied the installation cost per to the average ton of the last two completed facilities among the facilities installed within the last five years as at that time; (b) the Defendant calculated the installation cost per ton of the instant project district on the basis of the average ton of incineration facilities and food disposal facilities completed in 2011 on the premise that the payment plan was submitted in 2011; (c) the Plaintiff asserted that the installation cost of the instant project district would be reduced when calculating the installation cost as at the time of the instant disposition; (d) however, the Plaintiff asserted that the installation cost would be reduced when calculating the installation cost of the facilities based on the instant disposition; however, the lower court did not include the erroneous waste amount and the installation cost of the food disposal facilities of the Kimpo-si Center completed in 2012, excluding the construction cost of the machinery and the electricity and electricity, as well as the erroneous result that the Defendant did not include the installation cost of the completed facility from the Plaintiff in 2011.

In light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the principle of clarity and the calculation of installation costs, or by exceeding the bounds of the principle

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)