Jinx Co., Ltd. (Law Firm Mail et al., Counsel for the defendant-appellant)

Ulsan Metropolitan City Mayor (Law Firm International Law Firm, Attorneys Yoon-gil et al., Counsel for the plaintiff-appellant)

December 5, 2014

Ulsan District Court Decision 2012Guhap1598 Decided May 1, 2014

1. The plaintiff's appeal and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

On May 23, 2012, the Defendant issued a disposition to suspend the operation of the entrusted wastewater treatment business for three months, the disposition to suspend the operation of wastewater discharge facilities and prevention facilities for ten days, the disposition to suspend the operation of wastewater discharge facilities for water quality 20,610,168,960 (hereinafter referred to as "disposition to suspend the operation of the instant case", "disposition to suspend the operation of the instant case", and "Disposition to impose the instant disposition").

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant shall revoke both the instant suspension of operation and the instant disposition of imposition on the plaintiff on May 23, 2012.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: (a) by striking 6, 3 through 7, 9, 10 to 10, 7, 8, and 17, 14, and 8 to 17, respectively; and (b) by striking 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, the following is the same as the part of the judgment of the court of first instance.

2. Additional determination

A. The parties' assertion

1) Plaintiff

A) Defect in the procedure and method of the collection of samples

(1) On November 24, 2011, public officials belonging to the defendant presented an identification card at the Plaintiff’s workplace and notified that the samples (hereinafter “the samples of this case”) were a controlling public official, and conducted guidance and inspection in the Plaintiff’s workplace, without attending the Plaintiff’s workplace, without presenting an identification card, and providing guidance and inspection and collecting samples, despite having to be conducted in the presence of the Plaintiff’s workplace-related persons, under Article 68(3) of the former Water Quality and Aquatic Ecosystem Conservation Act (amended by Act No. 11979, Jul. 30, 2013; hereinafter “former Water Quality Ecosystem Act”).

(2) A public official belonging to the Defendant violated the former Water Pollution Test Standards (amended by the Ministry of Environment Notice No. 201-103, Jun. 22, 2011; hereinafter referred to as the “former Test Standards”) at the time of collecting the sample, the Defendant’s public official failed to observe the sample at least three times, even though the sample samples were used as samples, and at any time when collecting samples, the sample samples should not be disturbed.

(3) The sample of this case is not a collection of wastewater discharged during the operation of the Plaintiff’s workplace, but a collection of wastewater unilaterally by only the public officials belonging to the Defendant through the final outlet, and cannot represent the nature of the site.

(4) On November 24, 201, at around 22:00 to 22:20, the Defendant’s public officials collected the instant samples, but left the office without immediately transferring them to the inspection institution on the date of collection, but did not follow the procedures for transferring the samples to the head of the Ulsan Metropolitan City Health and Environment Research Institute (hereinafter “the head of the Ulsan Metropolitan City Environment Research Institute”), which is an inspection institution, at around 10:00 following the day, and the samples were deteriorated due to the failure to observe the method for preserving samples.

(5) 피고 소속 공무원들은 시료채취용기인 4ℓ들이 PE(폴리에틸렌)통 1개, 1ℓ들이 유리병 2개를 사용하여 이 사건 시료를 채취하였는데, 그 직후 원고의 직원인 소외 1이 시료채취방법이 부당하다고 항의하면서 시료채취용기를 발로 찼고, 그 과정에서 시료채취용기 중 1ℓ들이 유리병 1개가 깨어졌다. 그럼에도 피고가 검사기관인 울산환경연구원장에게 검사를 의뢰한 시료는 4ℓ들이 PE통 1개, 1ℓ들이 유리병 2개로 되어 있어 위 시료가 원고의 사업장에서 채취한 것인지 명확하지 않다.

B) Defect in calculating pollutant emission density

(1) The instant samples cannot be deemed as samples representing the nature of wastewater discharged from the Plaintiff’s workplace during operation, and rather, are highly likely to have a higher level of contamination. As such, the result of the instant samples inspection cannot be deemed as accurate information to determine whether the wastewater discharged from the Plaintiff’s workplace conforms to the permissible emission levels for wastewater discharged from the Plaintiff’s workplace during operation.

(2) Even if the result of the inspection of the instant samples falls under the information to determine whether the permissible emission levels for wastewater discharged in the course of operation at the Plaintiff’s workplace are met, since the procedures and methods of the collection of the instant samples are unlawful beyond the bounds under the substantive or procedural law, and thus, the instant suspension of operation and the instant disposition are unlawful.

C) Defect in the computation of excess discharge dues

(1) Defect in calculating the emission period

The Defendant viewed August 8, 201 as the time of the emission period on the sole basis of the notice of criminal disposition related to authorization and permission (the time of the emission period). On August 8, 2011, the collection date of the sample of this case should be regarded as the time of the emission period, in light of the following: (a) it is difficult to view that the Plaintiff’s workplace did not collect and inspect samples of the pollutant discharged from the Plaintiff’s workplace; (b) the nature and nature of the wastewater entrusted to the Plaintiff’s workplace is removed; (c) the degree different from that of the treatment thereof; and (d) the statement made by the investigation agency to the person concerned on the date on which the pollutant commenced to discharge is not an objective statement.

On November 24, 2011, the defendant viewed the defendant as the closing date of the emission period, and there is no legal basis nor is it appropriate to do so.

(2) Defect in daily discharge calculation

From August 8, 201 to November 24, 2011, the Defendant was notified of the disposition of the crime related to the authorization and permission that discharged wastewater containing water pollutants in the Plaintiff’s workplace from around August 8, 201 to around November 24, 201, and accordingly, calculated daily discharge by dividing the amount from 37,726 cubic meters into 109 cubic meters and calculating daily discharge by 346 cubic meters. 37,726 cubic meters is calculated by deducting the amount treated from the total amount of consignment during the foregoing period from the amount of consignment in the single vertical line. This method is without any legal basis for the Defendant’s arbitrary calculation, and there is no objectivity.

(D) the deviation and abuse of discretionary power;

In light of the fact that an excessive amount of excess 20.6 billion won imposed by the Defendant exceeds the Plaintiff’s ability to pay in light of the total sales amount of the Plaintiff’s workplace and the operating profit, it is in fact effective as the cancellation of the permission for the installation of emission facilities at the Plaintiff’s workplace or the closure of the Plaintiff’s workplace, which may cause economic and social confusion, the purport of the system of excess emission dues, the nature of excess emission dues, and the problems of the current system of excess emission dues, etc., the instant disposition of imposition is unlawful as it deviates

E) Violation of the principle of prohibition of double punishment

On November 24, 2011, the Defendant: (a) collected the instant samples on December 2, 201 without imposing the excess effluent charges; (b) again collected the samples on December 29, 201; and (c) issued a disposition imposing the excess effluent charges on December 29, 201; and (d) issued a disposition imposing the excess effluent charges on January 9, 2012; and (b) issued a disposition imposing the excess effluent charges on February 2, 2012; and (c) issued the instant disposition on May 23, 2012, six months after the date of collecting the samples. Accordingly, the instant disposition imposing the excess effluent charges on November 24, 2011, was already imposed on the samples as of December 29, 201 and on February 2, 2012. Therefore, the instant disposition imposing the double penal penalty is in violation of the principle prohibiting double penal punishment.

F) Violation of the principle of excessive prohibition

Considering the fact that the Defendant’s wastewater treatment fees are KRW 10-300,000 per L, and accordingly, the fees for discharging wastewater claimed by the Defendant as discharge amount are less than the charges even if calculated, the Defendant’s annual sales amount of KRW 2 billion, and the amount of charges imposed on the Plaintiff’s workplace is too large in light of the fact that the Defendant’s total annual sales amount of KRW 80 billion in 200,000, and the amount of charges imposed on the Plaintiff’s workplace during January 2012, the instant disposition violated the principle of excessive prohibition by exceeding the purpose of the law, namely, bearing the cost of treating discharged wastewater.

2) Defendant

A) The term “cases of installing pipelines not necessary for wastewater treatment” under subparagraph 2 (g) (i) of [Attachment 22] of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Ordinance of the Ministry of Environment No. 543, Jan. 29, 2014) means all of the pipes used for the unauthorized discharge of wastewater regardless of the timing of installation and purpose of installation. Thus, even if the pipes were necessary for wastewater treatment at the time of installation, they constitute “cases of installing pipes not necessary for wastewater treatment” if the pipes were used for the unauthorized discharge of wastewater after the installation.

B) Even if not, the Plaintiff installed a mobile temporary pipeline around October 201 in order to discharge wastewater without permission, and installed a new pipeline by removing a fixed pipeline installed after November 17, 201 and raising the diameter.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the Plaintiff’s assertion

A) Claim of the defect in the procedure and method of the collection of samples

(1) Of the provisions cited by the Plaintiff, Article 11(2) and (3) of the former Regulations on the Integrated Guidance and Inspection of Environmental Pollutants Discharge Facilities (amended by the Ministry of Environment Directive No. 928, Dec. 17, 2010; effective January 1, 2011) merely provides for the internal business regulations of administrative agencies concerning the integrated guidance and inspection of environmental pollutant discharge facilities, etc. in light of the content and nature of the regulations, and cannot be deemed as having the nature as a legal order binding upon the court or the general public. Thus, even if the Defendant did not comply with the procedures prescribed in the above provisions in relation to the collection of the sample of this case, the instant suspension of operation and the instant disposition of this case cannot be deemed unlawful.

Meanwhile, Article 68 (1) of the former Water Quality Ecosystem Act provides that "in cases prescribed by Ordinance of the Ministry of Environment, the Minister of Environment or the Mayor/Do Governor may have a relevant public official enter the relevant facilities, business places, etc. to collect water pollutants or inspect the relevant documents, facilities, equipment, etc. in order to verify whether the permissible discharge levels under Article 32 are complied with." Article 68 (3) of the same Act provides that "a public official who enters and conducts inspections under the provisions of paragraph (1) shall carry a certificate indicating his/her authority and produce it to related persons

Comprehensively taking account of the overall purport of the arguments in the statement No. 10-1 and No. 39, part of the evidence No. 4 and No. 5, the public officials belonging to the defendant were aware that the first wastewater discharge company was the plaintiff as a result of the verification of discharged water by opening the manle on the road adjacent to the plaintiff's place of business on November 17, 201, when the water quality of wastewater flowing into the plaintiff's place of business was missing, the public officials belonging to the defendant did not collect samples from the plaintiff's place of business around Nov. 24, 2011, after discovering the water quality of the wastewater flowing into the plaintiff's place of business at around Nov. 23 and 40, 201, the public officials belonging to the defendant did not visit the plaintiff's place of business to check that the wastewater discharge company was the plaintiff's first discharge company. However, the public officials belonging to the defendant did not visit the plaintiff's place of business to check whether the wastewater discharge was discharged in advance and to check the defects.

According to the above facts, the public officials belonging to the defendant should be deemed to have performed the procedure under Article 68(3) of the former Water Quality Ecosystem Act at the time of collecting the sample of this case. Furthermore, the plaintiff was preparing a control response manual against the defendant's control, and the plaintiff was storing wastewater containing water pollutants in excess of the permissible discharge level, and the non-point wastewater in each other, and at night, stored the wastewater in a different width tank and controlled the non-point wastewater containing water pollutants in excess of the permissible discharge level, the defendant's control was inflicted by discharging the non-point wastewater. On November 17, 2011, the plaintiff discontinued the discharge of the discharged water in advance and clean water, thereby making it impossible for the defendant to collect the sample of this case. The public officials belonging to the defendant to attend the plaintiff's workplace before collecting the sample of this case on November 24, 2011, but it is difficult to view that the plaintiff's team leader of this case's place of business without any participation in the plaintiff's place of business after collecting the sample of this case.

Therefore, this part of the plaintiff's assertion is without merit.

(2) In full view of the overall purport of the arguments and arguments in evidence Nos. 30, 31, and 32 of Eul and video, the public officials belonging to the defendant can recognize the fact that the sample of this case was collected in compliance with the old official test standards, stating that "containers for collecting samples shall be used at least three times as samples before collecting samples, and in any case when collecting samples, no disturbance of sample shall occur," at the time of collecting samples of this case. Thus, the plaintiff's assertion on different premise is without merit.

(3) The former official test standards stipulate that “the sample collected to determine the conformity of permissible discharge standards shall be taken to represent the character of the site by taking into account the changes according to the time, such as the nature, quantity, and quantity of the sample,” and that “the sample shall be taken at a location that can represent the nature of the sample” and include “the first discharge point of water pollution prevention facilities” or “the first discharge point of water pollution prevention facilities (the case where the sample is not subject to the water pollution prevention facilities)” as a place that can represent the nature of the sample.

In full view of the purport of the pleadings and arguments as to evidence Nos. 10-1, 2, 25, 27, 39, and 8 and 20, the Plaintiff’s workplace divided the breadth into 1, 2, and 1, and 2, and made biological treatment by storing any wastewater that can be treated biologically, and then discharging such wastewater into the final outlet via the secondary bed and filtering facilities. The two series of breadths of 2, without storing the remainder of wastewater and treating it biologically. The Defendant’s public official visited the Plaintiff’s workplace into the final outlet without permission through the second bed from the final outlet to the final outlet at night without discharging the wastewater at around 22:0 on November 24, 201, and confirmed that the wastewater discharged from the upper part of the Plaintiff’s workplace was discharged from the final outlet to the second bed from the final outlet to the second bed from the date of collecting the wastewater discharged from the final outlet at least 1 km of the Plaintiff’s workplace to the second bed from the final outlet to the second two of the final outlet.

According to the above facts, the public officials belonging to the defendant confirmed that wastewater was discharged from the plaintiff's workplace, and found that the samples of this case were collected from the remaining wastewater immediately after being discharged from the final outlet, which is the first discharge point outside the water pollution prevention facility of the plaintiff's workplace, after visiting the plaintiff's workplace, and visiting the plaintiff's workplace, and immediately after being discharged from the final outlet, which is the first discharge point outside the water pollution prevention facility of the plaintiff's workplace. The final outlet is an underground structure where home was sold, and the size of the final outlet is about 95cm in width, 30cm in height, and 23cm in height as alleged by the plaintiff, it is difficult to say that there is a lack of quantity due to the existence of waste water in about 65cm (=9cm x 30cm cm x 23cm cm/ 1,000) in the area, the plaintiff's assertion that the quality of samples of this case remains in the site can not be viewed as a reason to represent the part of the sample of this case.

(4) According to the results of the fact-finding conducted by the Head of the Ulsan Institute of Environmental Research on November 25, 201, public officials belonging to the defendant were assigned the samples of this case to the Head of the Ulsan Institute of Environmental Research on November 25, 2011.

However, in full view of the purport of the argument as a whole, evidence Nos. 10-1, 2, evidence Nos. 32, evidence Nos. 8 and 9, evidence Nos. 5, part of evidence Nos. 8 and 9, and fact-finding with respect to the head of the Ulsan Institute of Environmental Research in this Court, the public officials belonging to the defendant collected the samples of this case on Nov. 24, 201 and sealed them. After that, the public officials belonging to the defendant requested that the officials in charge of the plaintiff sign a written confirmation of collection of samples, but the public officials belonging to the defendant refused the plaintiff's signature. Rather, the public officials belonging to the defendant refused the plaintiff's signature, and the non-party Nos. 1 tried to destroy the samples containing the samples of this case while the public officials belonging to the defendant were unable to obtain signature at around 200:20 on Nov. 25, 201 to the head of the Institute of Environmental Research around 15, 2015.

In full view of the circumstances and circumstances of the collection of the sample of this case as above, the situation at the time of transfer of the sample of this case, and the official test standards of the Gu at the time of transfer of the sample of this case were prescribed as seven days in the case of floating material, 48 hours in the case of BOD, 28 days in the case of total nitrogen, and 6 months in the case of metal products, such as tobacco, and 28 hours in the case of total nitrogens, and 4 months in the case of metal products, etc., it is difficult to deem that there were any errors in the procedure of the inspection agency's transfer of samples to the Ulsan Institute of Environmental Research, which is the inspection agency, after about 12 hours in the case of collection of the sample of this case, and

(5) 갑 제10호증의 1, 2, 갑 제39호증, 을 제32, 35호증의 각 기재 또는 영상, 이 법원의 울산환경연구원장에 대한 사실조회 결과에 변론 전체의 취지를 종합하면, 피고 소속 공무원들은 시료채취용기인 4ℓ들이 PE통 1개, 1ℓ들이 유리병 2개를 사용하여 이 사건 시료를 채취한 후 시료채취용기를 밀봉하였는데, 그 직후 원고의 직원인 소외 1이 시료채취용기를 발로 찼으나, 시료채취용기가 깨어지거나 파손되지는 않았고, 밀봉된 상태 그대로 검사기관인 울산환경연구원장에게 인계된 사실을 인정할 수 있고, 이에 반하는 갑 제40, 47호증의 각 기재, 을 제5호증의 일부 기재는 믿지 아니한다.

Therefore, this part of the plaintiff's assertion is without merit.

B) Defect in calculating pollutant emission density

As seen earlier, in light of the fact that the sample of this case was taken from a position that can represent the nature of the target sample in accordance with the previous official test standards, and that it is difficult to deem that the sample of this case was deteriorated because it did not comply with the preservation method of the sample, and that there is no error of law beyond the limit under the substantive law or procedural law, the plaintiff's assertion on this part is without merit.

C) Defect in the computation of excess discharge dues

(1) In the case of an administrative trial, the facts acknowledged in the final and conclusive judgment of the relevant criminal case shall constitute a flexible evidence unless there are special circumstances.

Comprehensively taking account of the overall purport of the arguments in Gap evidence 7 and Eul evidence 3 and 20, non-party 2 and non-party 1 were indicted on April 24, 2012 by the Ulsan District Court 2012Kadan1201, Ulsan District Court 201, which was the appellate court of the above case, and Non-party 2 was sentenced to imprisonment with prison labor for 10 months, and non-party 1 was sentenced to a community service order for 2 years of suspension of execution and 120 hours of imprisonment with prison labor for 10 months, and the fact that the above conviction became final and conclusive can be acknowledged.

No business operator included in the main text of this Act shall commit an act discharging water pollutants exceeding the permissible discharge standards by failing to normally operate prevention facilities without justifiable grounds. Nonparty 2, at the Plaintiff’s place of business, Nonparty 1 and on-site workers, such as Nonparty 3, let them flow wastewater without emitting air pollutants exceeding the permissible discharge standards by means of 2 affiliated breadth, 4, 182.3 liter/ 40 liter (standard 200 liter/ 50 liter), 4, 280 liter (standard 250 liter/ 40 xer), 360 liter (standard 250 xliter/ 40 xer), 4, 360 liter (standard 250 xliter/40 xer), 50 xer/630 xer/40 x, 50 x/ 50 x/ 50 x/ 50 x of water pollutants, etc.).

(2) Defect in calculating the discharge period

Article 47 (1) of the Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter referred to as the "Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act") provides for the period of discharge. This case is not a case of improving the improvement plan in accordance with Article 40 (1) or (2) of the Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act.

Article 47(1)3 of the Enforcement Decree of the Water Quality Ecosystem Act provides that “The period from the date on which the water pollutants are discharged (referring to the date on which water pollutants are collected to inspect whether the date on which the discharge commenced is in excess of the permissible discharge level if it is impossible to ascertain the date on which the discharge commenced) to the date on which the performance of the order for improvement, the order for suspension of operation, the order for suspension of use, or the order for closure under Article 39, 40, 42 or 44 of the Act is scheduled or the date on which permission is cancelled or the date on which the violation of any of the subparagraphs of Article 38(1) of the Act is suspended.” Meanwhile, Article 38(1)4 of the former Water Quality Ecosystem Act provides that “the business operator shall not perform any of the following acts,” while Article 38(1) of the former Water Quality Ecosystem Act provides that “the act of discharging water pollutants in excess of the permissible discharge level is performed normally

Comprehensively taking account of the following circumstances, the evidence Nos. 1, 2, 20, and 24 of the Enforcement Decree of the Water Quality Ecosystem Act, which can be acknowledged as being comprehensively based on the whole purport of the pleadings, may be deemed as the date on which the water-quality pollutant commences to be discharged at the time of the discharge period from Article 47(1)3 of the Enforcement Decree of the Water Quality Ecosystem Act, and on November 24, 2011, the water-quality ecosystem can be deemed as the date of suspension of a violation in any of the subparagraphs of Article 38(1)3 of the Enforcement Decree of the Water Quality Ecosystem Act, which is stipulated as the expiration date of the discharge period from Article 47(1)3 of the Enforcement Decree of the Water Quality Ecosystem Act. Thus, this part of the Plaintiff’s assertion is without

① The Plaintiff initially treated low-concentration wastewater as a biological treatment method, while treating high-concentration wastewater, and became unable to properly treat the wastewater. From January 8, 2010 to August 201, the Plaintiff stored high-concentration wastewater from January 1, 201, to January 1, 201, and then discharged it to the final outlet without passing through the second bed, and without passing through the second bed, without passing through the outlet at night, without passing through the second bed, without passing through the outlet. From August 8, 2011, the Plaintiff caused damage by discharging it, if there is information that there is regulation after storing rainwater and industrial water in preparation for control. Of these, the Plaintiff, from around August 8, 2011, performed the work of supplementing the biological treatment by putting the high concentration of wastewater without permission into the first beingd with the first beingd with the first beingd with the first beingd with the first beingd with the second beingd with the second beingd with the wastewater without passing through the first beingd with the second beingd with the second beingd with the air outlet installed without passing.

② In the relevant criminal case, both Nonparty 2, Nonparty 1, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6, who are the Plaintiff’s employees, introduced the entrusted wastewater into the two-department bombs that did not perform their functions by destroying the micro-organisms without passing through an air exhauster, and the period of discharging the processed wastewater into the final outlet without passing through the second bombs and to November 24, 201 through the branch pipes installed in the above bombs, stated that it was from August 8, 201 to November 24, 201, and there is no circumstance to suspect the credibility or objectivity of the statement as above.

③ In light of the contents of various evidence submitted in this case, there is no circumstance to find it difficult to adopt a factual judgment of the relevant criminal case as it is, and there is no circumstance to deem that there is a special change in the nature of wastewater discharged from the Plaintiff’s workplace from August 8, 201 to November 24, 2011, or the method of discharging wastewater without permission has changed in the wastewater treatment process or without permission.

④ Upon the crackdown on November 24, 2011, the Plaintiff suspended the violation of Article 38(1)4 of the former Water Quality Ecosystem Act by cutting off the main pipes of the vertical breadth from November 25, 2011, the following day.

⑤ Although an administrative agency should calculate the emission density of pollutants based on the objective facts as far as possible, the actual emission density of pollutants over a certain period at a workplace cannot be increased not only during the time and completion period, but also during the period, so it is impossible to measure the accurate emission quantity and calculate emission dues accordingly. On the other hand, considering the fact that it is difficult to detect the act of violation and that it is not easy to recover the damaged environment once due to the emission of pollutants, the emission density and the calculation method and standards of emission dues are to be conducted according to the specific standards set by statutes.

(3) Defect assertion in daily discharge calculation

Article 47 (4) of the Enforcement Decree of the Water Quality Ecosystem Act provides that "the daily quantity of emitted water and daily discharge under paragraph (2) shall be calculated in accordance with attached Table 15, and the discharge measured shall be calculated in accordance with the official environmental pollution test standards pursuant to Article 6 of the Environmental Examination and Inspection Act: Provided, That in cases of discharge measured which is deemed impossible to calculate or to have a substantial difference from the actual flow quantity, it shall be calculated in accordance with the following methods" in Article 47 (4) 3 of the Enforcement Decree of the Water Quality Conservation Act provides that "the quantity of water used at the relevant place of business (including all water used at the relevant place of business, such as tap water, water used for industrial use, groundwater, river water, sea water, etc.) shall be calculated in accordance with the quantity of water used, product content

In full view of the following circumstances, Gap evidence Nos. 9 and Eul evidence Nos. 6, which can be acknowledged by comprehensively considering the purport of the entire pleadings, the defendant's calculation of daily discharge by 346 cubic meters is lawful in accordance with the proviso of Article 47 (4) 3 of the Enforcement Decree of the Water Quality Conservation Act. Thus, the plaintiff's assertion on this part is without merit.

① From August 8, 2011 to November 24, 2011, the Defendant calculated the daily discharge amount by dividing it into 109 hours, the number of days from August 8, 201 to November 24, 2011, which is 37,726 cubic meters, which the Plaintiff recognized as the quantity of waste containing water pollutants exceeding the permissible discharge levels from around August 8, 201 to around November 24, 201. The reasons for recognizing the volume of waste 37,726 cubic meters as above in the final judgment in the relevant criminal case are 44,560 cubic meters in total, and it is difficult for the Plaintiff to treat wastewater normally in the way of 200 cubic meters of waste water generated from the Plaintiff’s business department without permission through the 37,726 metres of the remaining 37,00 cubic meters of waste water generated from the Defendant’s business department, without permission, by putting the remaining 232,000 square meters of waste water generated from the Defendant’s.

② The wastewater entrusted by the Plaintiff on November 24, 201, which was on the date of control, is 509.29.29 cubic meters, and the wastewater normally treated in the first vertical breadth is 64.10 cubic meters. As such, the wastewater illegally discharged from the second vertical breadth on the date of control is 445.19 cubic meters, which is 346 cubic meters of daily amount calculated by the Defendant.

③ The purpose of the proviso of Article 47 (4) 3 of the Enforcement Decree of the Water Quality Ecosystem Act is to calculate daily discharge by reducing the quantity of water not actually generated from all water used at the relevant workplace from the quantity of water used at the relevant workplace, and it seems that the daily discharge by reducing the quantity of waste normally treated from the total quantity of waste collected by the Plaintiff seems to conform to the purport of the above provision.

D) Claim of deviation and abuse of discretionary power and claim of violation of the principle of proportionality

(1) Whether an administrative act is a binding act or discretionary act cannot be uniformly defined. The determination should be made by taking into account all the structure, form, and language of laws and regulations that form the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, and the individual nature and type of the pertinent act itself. Judicial review of the two separate types is based on the following methods: (a) the court, based on the principle of fact-finding and the interpretation and application of relevant laws and regulations, has derived a certain conclusion in the case of the former; and (b) the determination of the legality of the judgment made by an administrative agency in light of the conclusion of the pertinent laws and regulations; (c) the latter is based on the determination of whether there is deviation or abuse of discretion without drawing the independent conclusion of the administrative agency; and (d) the determination of whether such deviation or abuse of discretion is a violation of the principle of proportionality and equality; and (e) whether the pertinent act has been committed or a violation of the purpose or motive thereof (see Supreme Court Decision 2017Du7867, Apr. 10, 2014).

Article 41(1) of the former Water Quality Ecosystem Act provides for "excess discharge dues" in subparagraph 2 (a) of the same paragraph and provides for "excess discharge dues" in Article 32 and "the cases where water pollutants are discharged in excess of the permissible discharge levels under Article 32" in Article 41(1) of the Enforcement Decree of the same Act, while the Minister of Environment imposes and collects discharge dues on business operators who discharge water pollutants in order to prevent or reduce water pollution and damage to aquatic ecosystems caused by water pollutants. In such cases, discharge dues shall be imposed as classified in each of the following subparagraphs, but matters necessary for the methods of calculation and calculation shall be prescribed by Presidential Decree. According to the delegation from the above provision, Articles 45, 46, and 47 through 49 of the former Enforcement Decree of the Water Quality Ecosystem Act provide for the calculation standards and methods of excess discharge dues under Article 41(1)2 of the former Enforcement Decree of the Water Quality Ecosystem Act (hereinafter referred to as "excess discharge dues"):

Considering the structure, form, language, and text of the above-mentioned statutes and the fact that the imposition of excess discharge dues is an administrative act to prevent or reduce water pollution and damage to aquatic ecosystems caused by water pollutants, and that the imposition of excess discharge dues is an influence administrative act that has the characteristics of sanction against the discharge of water pollutants in excess of the permissible discharge levels, the administrative agency should impose the excess discharge dues calculated in accordance with the calculation standards and methods prescribed by the above-mentioned statutes on the business operator, etc. who discharges water pollutants in excess of the permissible discharge levels, and there is no room for discretion in imposing the excess discharge dues on the administrative agency as to whether to impose the dues and the calculation of the amount thereof. Thus, the imposition of excess discharge dues should

The Plaintiff’s assertion of violation of the principle of excessive prohibition is identical to the assertion of deviation or abuse of discretionary power. The instant disposition constitutes a binding act as a disposition of imposition of excess discharge dues. Thus, the Plaintiff’s assertion on the premise that the instant disposition of imposition is a discretionary act is without merit.

(2) Even if the instant disposition constitutes a discretionary act, the final discharge point of the ○ Sewage treatment plant constitutes public waters in the coastal waters, and thus, it is practically likely to pose a direct hazard to the aquatic ecosystems of the public waters. The fact that it is not easy to restore the damaged environment once due to the excessive discharge of water pollutants to its original state due to the circumstances of the ○ Sewage treatment plant’s facilities, and other reasons such as the developments leading up to the instant disposition and the process of such disposition, the degree of violation of the permissible discharge levels, the same penal power, and the legislative purpose of the former Water Quality Ecosystem Act to prevent harm to the public health and the environment caused by water pollution. Thus, the instant disposition cannot be deemed to be unlawful since the public interest to be achieved by the instant disposition is less than the disadvantage that the Plaintiff would suffer, and thus, it is difficult to deem that the instant disposition was unlawful as it deviates from and abused discretion in violation of the proportionality principle and the principle of excessive prohibition.

E) Grounds for violation of the principle of prohibition of double punishment

Article 68(1) of the former Water Quality and Ecosystem Conservation Act provides that “In cases prescribed by Ordinance of the Ministry of Environment, the Minister of Environment or the Mayor/Do Governor may have the relevant public officials enter the relevant facilities or places of business, etc. to collect water pollutants in order to verify whether the permissible discharge standards under Article 32 are observed.” Article 101(1) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Ordinance of the Ministry of Environment No. 443, Jan. 19, 2012) provides that “in cases where the Minister of Environment or the Mayor/Do Governor provides guidance and checks to confirm whether wastewater discharge facilities, water pollution prevention facilities, wastewater terminal treatment facilities, or other water pollution sources have been properly operated or the disposal status of water pollutants has been verified (Article 1); “in cases where water pollution accidents or environmental pollution damage have occurred or is likely to occur due to the discharge of water pollutants (Article 2); “in cases where it is necessary to investigate the imposition of discharge dues or the discharge quantity of water pollutants”; “in cases where it is necessary to confirm the implementation of orders or

Even if examining the contents of the aforementioned relevant Acts and subordinate statutes, the relevant public officials are allowed to collect water pollutants in order to verify the actual conditions of treating water pollutants or investigate the discharge quantity of water pollutants by entering the relevant facilities, places of business, etc., and there is no provision restricting the relevant public officials’ collection of new water pollutants in cases where water pollutants were controlled due to the discharge of water pollutants, but there is no provision restricting the relevant public officials’ collection of water pollutants. Rather, if the former water pollutants were controlled by the discharge of water pollutants, it is more necessary to confirm the compliance with the permissible discharge standards by correcting the former water pollutants, and even if the public officials belonging to the Defendant collected the samples of this case on November 24, 201 and collected samples again on December 24, 201 and collected samples again on January 9, 2012, it does not constitute an unlawful collection of samples as of December 2, 2011 and as of January 9, 2012.

Furthermore, the period of imposition of excess emission dues based on the extraction of samples from December 2, 2011 to December 23, 2011, and the period of imposition of excess emission dues based on the extraction of samples from January 9, 2012 is the period of imposition of excess emission dues from January 9, 2012 to January 30, 2012, and there is no overlap between the period of imposition of excess emission dues from August 8, 2011 to November 24, 2011, which is the period of imposition of the instant disposition.

In full view of the above circumstances, it is difficult to view that the instant disposition violated the principle of double punishment prohibition. Therefore, the Plaintiff’s assertion on this part is without merit.

2) As to the defendant's argument

A) Article 64(2) of the former Water Quality and Aquatic Ecosystem Conservation Act provides that “Where a wastewater treatment business operator falls under any of the following subparagraphs, the Minister of Environment may revoke his/her registration or order the suspension of business for a fixed period not exceeding six months.” Article 71 of the former Water Quality and Aquatic Ecosystem Act provides that “where a wastewater treatment business operator poorly performs wastewater treatment business by intention or gross negligence, it shall be determined by Ordinance of the Ministry of Environment regarding the criteria for administrative disposition against violations of this Act or any order issued under this Act.” Article 105(1) of the former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act (amended by Ordinance of the Ministry of Environment No. 543, Jan. 29, 2014; hereinafter referred to as “former Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act”) provides that “where the wastewater treatment business operator falls under any of the following subparagraphs, the Minister of Environment may revoke his/her registration or order the suspension of business for a fixed period not exceeding 20 months” (attached Table 22).

In light of the language and content of the above provision, in the case of the first violation, three months of the suspension of business in the case of the second violation, and the revocation of registration in the case of the second violation, which requires a relatively heavy administrative disposition compared to other violations, and Article 64(2)3 of the former Water Quality and Ecosystem Act requires intentional or gross negligence, “in the case of installing pipelines which are not required for wastewater treatment” refers to the case of installing pipes which are not required for wastewater treatment as of the time of installation, even though the pipes necessary for wastewater treatment were installed as of the time of installation, it shall not be deemed to fall under the case where the wastewater treatment was used for the unauthorized discharge of wastewater after the installation.

From August 8, 201, the Plaintiff discharged wastewater without permission from the Defendant for the purpose of using the MBR method (Membro Reactor method: hereinafter “Membra”), around April 2, 2008, without permission, through the main pipes installed in the 2nd breadth. Since around August 8, 2011, the Plaintiff installed a breadth with permission from the Defendant in order to use the wastewater for treatment of raw water, sewage, and wastewater under the three-dimensional size and the upper surface of the prevention of separation. Since the Plaintiff did not use the MBR method, the Plaintiff installed the MBR method by iceing the MBR method to remove wastewater without permission. Furthermore, insofar as there is no evidence to acknowledge that the Plaintiff installed the above main pipes in order to remove wastewater without permission, it is difficult to view the Plaintiff’s installation of such pipes to constitute “wastewater treatment” without permission.

Therefore, the disposition of this case cannot be recognized as a ground for the disposition of this case, and thus, the defendant's assertion on this part is without merit.

B) According to the statements or videos in the evidence Nos. 27-1, 2, 3, and 29 of the evidence Nos. 27-1, 27-2, and 29, the Plaintiff may recognize the fact that the Plaintiff installed a mobile temporary heading around October 201 in order to discharge wastewater without permission, and after November 17, 201, installed a new pipeline by removing the existing heading lines and displaying the diameter.

However, comprehensively taking account of the overall purport of the arguments stated in Gap evidence Nos. 1, 2, and 4, the defendant, on May 4, 2012, upon giving the plaintiff a prior notice of the disposition of the instant suspension of business, requested the plaintiff to suspend the instant business on the ground that the plaintiff discharged water pollutants in excess of the permissible discharge levels from August 8, 201 to November 24, 2011, through the discharge of the water pollutants installed in the storm tank into the final outlet. The defendant requested the plaintiff to submit his opinion by not later than May 18, 2012 after giving an opportunity to state opinion. The plaintiff, on May 17, 2012, installed a heavy period for using the original MBR method. Since the plaintiff failed to use the MBR method, it is not necessary to remove the water pollutants in excess of the permissible discharge levels from the beginning to the plaintiff, and it is not necessary to illegally remove the water pollutants in violation of the aforementioned order from the beginning. However, it does not constitute an unlawful discharge order from the plaintiff 1 to the above.

According to the above facts, the Defendant installed a heavy water tank and thereby discharged water pollutants in excess of the permissible discharge levels from August 8, 201 to November 24, 2011. Since the above branches were used for the unauthorized discharge of wastewater regardless of the installation timing and purpose of its installation, the Plaintiff’s installation of the above branches constitutes “cases where pipelines that are not necessary for wastewater treatment” and deemed to have been subject to the instant disposition of suspension of business on the grounds of its disposal. The Defendant did not mention that “the Plaintiff installed a mobile temporary heading around October 201 for the purpose of discharging wastewater without permission” at any place in the prior notice of the instant disposition of suspension of business or the order of administrative disposition, and that “the Plaintiff installed new pipelines after November 17, 2011.”

In light of the aforementioned circumstances, the instant disposition of the suspension of business falls under discretionary acts. Comprehensively taking into account the aforementioned circumstances, it shall be deemed that the basic factual basis, which forms the basis for exercising discretionary power, exists between “the Plaintiff’s installation of the above branch line in the width width, thereby discharging water pollutants in excess of the permissible discharge levels from August 8, 201 to November 24, 201,” and “the Plaintiff installs a mobile-type temporary protection around October 201, and installing a new pipeline after November 17, 2011,” and thus, it is difficult to view that the instant disposition of the suspension of business is legitimate solely on the grounds asserted by the Defendant, and therefore, the Defendant’s assertion on this part is without merit.

3. Conclusion

If so, the judgment of the court of first instance is legitimate, and both the plaintiff's appeal and the defendant's appeal are dismissed.

[Attachment]

Judges Park Jae-young (Presiding Judge)