[1] In a case where a clear legal provision on the imposition of charges exists, whether the imposition of charges is valid only when the provision on the attached Table of the Framework Act on the Management of Charges is included (negative)

[2] The case holding that Gap heating Corporation's heat supply regulations cannot be deemed null and void in light of all the circumstances in a case where the effect of Gap heating Corporation's heat supply regulations on costs for supplying facilities under Article 18 (1) of the Integrated Energy Supply Act is at issue

[3] In a case where Gap heating Corporation and Eul Urban Gas Corporation did not violate compulsory provisions, such as Article 23 of the Housing Act and Article 55 of the Urban Development Act, the case holding that the above mandatory provisions do not violate each of the above compulsory provisions

[1] In light of the purpose of the Framework Act on the Management of Charges, the form and amendment process of Article 3 of the Framework Act on the Management of Charges, etc., the Framework Act on the Management of Charges intended to regulate charges under the above Act in order to provide justifiable grounds by listing charges, which were in force at the time of the enactment of the Act, and to check arbitrary imposition of charges when creating charges that may infringe on fundamental rights after the enforcement of the Act. However, even if there are clear provisions on the imposition of charges solely on the basis of such provisions, it cannot be interpreted that the imposition of charges is effective only if charges are included in the attached Table of the Framework Act on the Management

[2] The case holding that Gap heating Corporation's heat supply regulations cannot be deemed null and void merely on the ground that they were otherwise delegated under Article 4 of the Framework Act on the Management of Charges by prescribing necessary matters concerning the standards for calculation, imposition, and collection of construction cost charges without setting the scope of delegation legislation in light of the overall structure, purpose, and purpose of the Integrated Energy Supply Act, the pertinent delegation provisions, and the organic relation of the relevant laws and regulations, etc.

[3] In a case where Gap heating Corporation and Eul Urban Gas Corporation violated compulsory provisions, such as Article 23 of the Housing Act and Article 55 of the Urban Development Act, where construction cost charges, installation charges, etc. borne by Byung Co., Ltd. and Eul Co., Ltd., the case holding that each of the aforementioned mandatory provisions does not violate the aforementioned compulsory provisions on the grounds that each of them bears the costs of installing integrated energy supply facilities or gas supply facilities, and that Article 18 (1) of the Integrated Energy Supply Act and Article 19-2 (1) of the Urban Gas Business Act share the costs of installation borne as such to the beneficiaries’ users in the form of share of the share of the costs of installation borne by Eul Co., Ltd., and that Article 18 (1) of the Integrated Energy Supply Act and Article 19-2 (1) of the Urban Gas Business Act are different from each of the aforementioned compulsory provisions, on the grounds that Article 18 (1) of the Integrated Energy Supply Act and Article 19-2 (1) of the Urban Gas Business Act

[1] Article 3 of the Framework Act on the Management of Charges / [2] Articles 17(1), 18(1) and (2) of the Integrated Energy Supply Act, Article 4 of the Framework Act on the Management of Charges / [3] Article 23(1) and (3) of the Housing Act, Articles 54, 55(1) and (2) of the Urban Development Act, Article 18(1) of the Integrated Energy Supply Act, Article 19-2(1) of the Urban Gas Business Act

D. S.C. (Bae, Kim & Lee LLC, Attorneys Kim Yong-hwan et al., Counsel for the plaintiff-appellant)

Seoul Urban Gas Co., Ltd. (Law Firm Gyeongsung, Attorneys Seo-sung et al., Counsel for the plaintiff-appellant)

Korea District Heating Corporation (Attorneys Park Jong-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na55404, 55411 decided January 11, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The conflict between laws should be determined by comprehensively examining the legislative purpose, regulations, scope of application, etc. of each law (see Supreme Court Decision 2010Du16714, May 24, 2012, etc.).

The Framework Act on the Management of Charges provides for basic matters concerning the establishment, management and operation of charges, thereby ensuring the fairness and transparency in the operation of charges, thereby minimizing the inconvenience of the people and promoting the economic activities of enterprises. Article 3 of the Framework Act on the Management of Charges was enacted on December 31, 2001 and came into force on January 1, 2002 following that date, and Article 3 of the same Act provides that "charges may not be established unless they are governed by the provisions of Acts prescribed in the attached Table." In the attached Table, charges established pursuant to the same Act shall be listed, and where charges not prescribed in the attached Table at the time of the enforcement of the same Act are imposed, the charges shall not be established unless they are governed by the provisions of Acts prescribed in the attached Table. Where charges are listed in the attached Table, the provisions of Article 3 shall be maintained as they are after deliberation by the Committee to request the improvement of the system for the abolition, etc. of the charges. In addition, the provisions of the above attached Table shall be amended several times and the provisions of new regulations to regulate these Acts

Meanwhile, as the Urban Gas Business Act was amended by Act No. 8186 on January 3, 2007, Article 19 newly established the provision that “General urban gas business entities shall not refuse or suspend the supply of gas to gas users in the permitted supply area without justifiable grounds.” In addition to the new provision of the above provision, Article 19-2 newly established and newly established Article 19-2 that allows general urban gas business entities to share all or part of costs incurred in installing gas supply facilities to those who requested changes in the contract for the supply of urban gas or gas supply.

In light of the legislative purpose of the Framework Act on the Management of Charges, the form and amendment process of Article 3 of the Framework Act on the Management of Charges, etc., the Framework Act on the Management of Charges lists the charges that were in force at the time of the enactment of the Act on the Management of Charges, providing grounds for justification, and, in the event of the establishment of a new charge that is likely to infringe on fundamental rights after the enforcement of the Act on the Management of Charges, it is intended to regulate the charges by the said Act to check arbitrary imposition. However, even if there is a clear provision on the imposition of charges on the sole basis of such a provision, it cannot be interpreted that the imposition of charges is effective only

Therefore, in the instant case, the Defendant (Counterclaim Plaintiff)’s facility contributions claimed by the Seoul Urban Gas Corporation (hereinafter “Defendant Urban Gas Corporation”) have clear grounds for Article 19-2 of the Urban Gas Business Act (amended by Act No. 8186, Jan. 3, 2007; hereinafter the same) and related sub-laws, and the provision on the basis of facility contributions under the Urban Gas Business Act is a provision established on the above background, and it cannot be said that there is no direct benefit or cost in relation to the supply of urban gas to the user who pays the facility contributions. In addition, the imposition of facility contributions under the Urban Gas Business Act is not null and void on the ground that it is not prescribed in the attached Table of the Framework Act on the Management of Charges for Facilities

In the same purport, the court below is just in rejecting the Plaintiff’s assertion that Defendant Urban Gas did not have any obligation to pay the facility contributions to Defendant Urban Gas on the premise that the facility contributions imposed by Defendant Urban Gas to Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) are not a beneficiary’s share due to the lack of legal grounds for its installation under the Framework Act on the Management of Charges. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by

2. Regarding ground of appeal No. 2

Article 17(1) of the Integrated Energy Supply Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) provides that the heat supply regulations of the Defendant Korea District Heating Corporation (hereinafter referred to as “Defendant Heating Corporation”) shall be based on Article 17(1) of the Integrated Energy Supply Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply), which provides that “A business entity shall establish and report to the Minister of Knowledge Economy, as prescribed by Ordinance of the Ministry of Knowledge Economy, the terms and conditions of supply, and shall also be amended.” Article 18(1) of the Enforcement Decree of the Integrated Energy Supply Act provides that construction costs for supply facilities under Article 18(1) of the same Act (hereinafter referred to as “construction costs charges”). Article 18(2) of the same Act provides that “A business entity shall not be deemed to have any basis for imposing construction costs on the user, imposition and collection methods thereof, and shall not be deemed to have any amount of construction costs per unit.”

In addition, considering the circumstances such as the appropriateness of the amount of construction cost charges in the process of reporting the heat supply regulations to the competent authorities, including the Ministry of Knowledge Economy, and the amount of construction cost charges may be necessary to be determined flexibly by coping with fluctuations arising from economic situation, scale and conditions of housing construction, etc., even if the provisions of the Enforcement Decree of the Integrated Energy Supply Act stipulate more detailed matters after specifying the standards for calculating the construction cost charges, it is sufficiently foreseeable. Thus, in light of the overall structure, purpose and purpose of the Integrated Energy Supply Act, the pertinent delegation provision, contents of the pertinent delegation provision, and the organic relation of relevant laws and regulations, it cannot be deemed that the delegation legislation goes beyond the scope of delegated legislation.

In addition, Article 4 of the Framework Act on the Management of Charges provides that the subject of imposition and collection of charges, purpose of establishment, requirements for imposition, standards for calculation, calculation, method of calculation, rate of imposition, etc. shall be specifically and clearly provided: Provided, That the details of requirements for imposition, etc. may be prescribed by Presidential Decree, Ordinance of the Prime Minister, Ordinance of the Prime Minister, Ordinance, or municipal ordinance or municipal ordinance as delegated by the relevant Act, with specific scope specified and delegated by the relevant Act. Article 4 of the Framework Act on the Management of Charges provides that the principle of statutory reservation to play a role as a general law concerning the management of charges, etc. Therefore, Article 18(2) of the Integrated Energy Supply Act provides for necessary matters concerning the standards for calculation and method of imposition and collection of construction cost charges without specifying the scope thereof, and it cannot be said that the heat supply regulations

In the same purport, the lower court is justifiable to have rejected the Plaintiff’s assertion that imposing construction cost charges on the Plaintiff under the heat supply regulations set by the Defendant Heating Corporation, even though the details of construction cost charges are prescribed by Presidential Decree under the Integrated Energy Supply Act, was based on invalid provisions in violation of the principle of statutory reservation. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the

3. Regarding ground of appeal No. 3

Comprehensively taking account of Article 23 of the Housing Act, Articles 54 and 55 of the Urban Development Act, the cost for a housing construction project or an urban development project is to be borne by an implementer. However, according to each provision of Article 23(1) and (3) of the Housing Act, Article 55(1) and 55(2) of the Urban Development Act, the cost for installing district heating facilities and gas supply facilities are to be borne by a supplier who is an installation obligor exceptionally. The legislative intent of the legislation is to ensure that installation of large-scale arterial facilities, such as heating and gas, etc. essential for human residential life, such as district heating facilities or gas supply facilities, is essential for the implementation of a housing construction project or an urban development project, and thus, the performance of the project is considerably difficult if it is entrusted to an implementer in whole, and the installation and cost-bearing of facilities are clearly required to prevent disputes arising therefrom in advance (see, e.g., Constitutional Court en banc Decision 2009Hun-Ba6, May 28, 2009).

On the other hand, Article 18(1) of the Integrated Energy Supply Act and Article 19-2(1) of the Urban Gas Business Act stipulate that all or part of the installation costs of integrated energy supply facilities or gas supply facilities may be shared by users. The above provision provides that a business operator (supplier) may share installation costs in the form of construction cost charges for the Integrated Energy Supply Act, and that the Urban Gas Business Act may share installation costs in the form of facility contributions to beneficiaries, and that such construction cost charges and facility contributions are of the nature of beneficiaries (see Constitutional Court en banc Decision 2001Hun-Ba90, May 15, 2003). The legislative purpose of the above is to first of all, to protect collective energy supply facilities or urban gas business as an urban-based business requiring investment in large scale at a lower price through efficient financing of investment resources, and to establish a foundation to ensure the efficient provision of heating or gas to users of urban gas supply facilities (see, e.g., Constitutional Court en banc Decision 2001Hun-Ba90, supra).

In other words, each of the instant mandatory provisions is that a supplier who is liable to install integrated energy supply facilities or gas supply facilities bears the burden of installation costs. Article 18(1) of the Integrated Energy Supply Act and Article 19-2(1) of the Urban Gas Business Act share the installation costs so borne to the user in the form of a beneficiary’s share, and are different from each of the instant compulsory provisions. Therefore, construction cost charges that the Plaintiff paid to the Defendant heating Corporation are different from the legislative intent and subject to regulation. Therefore, construction cost charges that the Plaintiff paid to the Defendant Heating Corporation, based on Article 18(1) of the Integrated Energy Supply Act, are borne by the Defendant Urban Gas Corporation based on Article 19-2(1) of the Urban Gas Business Act, and it cannot be deemed that each of the instant compulsory provisions are contrary to each of the instant compulsory provisions.

In the same purport, the court below affirmed the reasoning of the judgment of the court of first instance that rejected the Plaintiff’s assertion on the ground that the costs of construction for heating works are imposed on the Plaintiff based on the heat supply regulations of the Defendant heating Corporation reported to the Minister of Knowledge Economy pursuant to Article 17 of the Integrated Energy Supply Act based on Article 18(1) of the same Act, and the charges of general facilities and the charges of cooking facilities for which the Defendant Urban Gas Corporation provided to the Defendant Urban Gas Corporation as a counterclaim was imposed pursuant to the Urban Gas Supply Regulations approved by the Gyeonggi-do Governor pursuant to Article 20 of the Urban Gas Business Act based on Article 19-2(1) of the same Act, and it cannot be deemed that each of the mandatory provisions of this case

4. Regarding ground of appeal No. 4

In full view of the relevant provisions, the construction cost charges stipulated in Article 18(1) of the Integrated Energy Supply Act and the gas supply facility charges stipulated in Article 19-2(1) of the Urban Gas Business Act do not share the actual installation cost of the newly installed supply facilities to supply integrated energy or urban gas to the relevant user, but rather shares the same unit price per se regardless of the installation cost of the relevant user’s facilities for the relevant user. Therefore, it cannot be deemed that the construction cost charges or facility charges include the part corresponding to the installation cost of the relevant user’s main facilities for the relevant user, and it cannot be deemed that the heating and urban gas supplier imposes double installation charges on the user.

In the same purport, it is reasonable to reject the Plaintiff’s double-liability deduction or claim for return of unjust enrichment on the grounds that the portion corresponding to the construction cost of arterial facilities for the Plaintiff, the user, or the part from the boundary of a housing complex to each household does not include or are not subject to double-liability, and that the said part cannot be separately calculated from the construction cost charges or facility charges, and contrary to what is alleged in the grounds of appeal, there was no error by misapprehending the legal doctrine on Article 5 of the Framework Act on the Management of Charges

5. Regarding ground of appeal No. 5

After finding the facts as stated in its holding, it is reasonable to interpret the meaning of the provision that "no retroactive application shall be made even if any amendments to the Urban Gas Business Act have occurred after the future, to the effect that where the plaintiff bears the costs of piping construction and general facility contributions, it shall not be required to make an additional settlement or to bear the costs for other matters. However, the court below determined that the defendant urban gas business, as the content of the agreement between the plaintiff and the defendant urban gas, should bear the construction costs for the pipeline construction to the boundary of the site by parcel to the plaintiff who is the project owner, as long as the provision on the cost of the urban gas pipeline construction among the contents of the agreement between the plaintiff and the defendant urban gas, becomes invalid contrary to the mandatory provisions of Article 23 (1) and (3) of the Housing Act, as long as the provision on the cost of the above agreement becomes invalid against the mandatory provisions of the said agreement

In light of relevant statutes and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the validity of the waiver of the facility contributions for cooking exclusive use.

6. Regarding ground of appeal No. 6

After finding the facts as stated in its holding, the court below rejected the Plaintiff’s claim that the Plaintiff sought the return of value-added tax on construction cost charges paid by the Plaintiff to Defendant Heating Corporation on the ground that the Plaintiff could not refuse the payment of value-added tax on the ground that the Plaintiff’s payment of value-added tax could not be denied on the ground that the Plaintiff would not refuse the payment of value-added tax on the ground that the Plaintiff’s payment of value-added tax would not be denied on the ground that the Plaintiff would not refuse the payment of value-added tax on the grounds that the Plaintiff was a taxpayer of value-added tax in light of the structure of the tax payment of value-added tax, based on the fact that the Plaintiff was a taxpayer of value-added tax in view of the fact that the Plaintiff was a taxpayer of value-added tax.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to value

7. 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.

Justices Park Poe-dae (Presiding Justice)