[1] Standard for determining which Enforcement Decree or Ordinance is invalid because it goes against the mother law

[2] Whether Article 65 (5) 1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act, Article 3 (2) 3 of the former Ordinance on Collection of Charges for Persons Causing Damage to Water Supply and Waterworks, etc., and Article 3 (2) 3 of the former Ordinance on Collection of Charges for Persons Causing Damage to Water Supply and Waterworks shall be deemed null and void beyond the scope of the mother law to stipulate "the amount equivalent to the charges for the

[1] If it is not clear whether a provision of an enforcement decree or a municipal ordinance conflicts with the mother law, the provision shall not be declared null and void as a violation of the mother law, if it is possible to interpret that the provision is consistent with the mother law by comprehensively taking into account other provisions of the parent law, the Enforcement Decree or municipal ordinance, its legislative purport, and history. Such a legal principle is in line with the principle that since the legal system of the state itself forms a unification body, conflicts between the upper and lower rules should be set aside to the maximum extent possible. In addition, it is based on the presumption principle that the norm in a democratic state is in conformity with the upper rules generally, and in real cases where the lower rules are declared null and void because it is in conflict with the upper rules, not only legal confusion and legal instability, but also legal gap and legal situation until new norms are enacted. Therefore, it is also necessary to avoid such harm.

[2] Considering the principle of statutory interpretation of subordinate norms, the legislative purport of the provision on the charge for causing damage to waterworks, the form and content of the relevant provision, and the possibility of judicial control over the discretionary authority over the disposition imposing the charge for causing damage to waterworks, the “amount equivalent to the charge for using tap water that was leaked or unusable due to damage to waterworks” under Article 3(2)3 of the former Ordinance on the Collection of Charges for Causing Damage to Water Supply and Waterworks (amended by Seoul Special Metropolitan City Ordinance No. 4902, Jan. 7, 2010) can be interpreted as being included in “the cost necessary for maintaining the waterworks” under Article 71(1) of the former Water Supply and Waterworks Installation Act (amended by Act No. 10317, May 25, 2010). Thus, the above Enforcement Decree or Ordinance’s provision cannot be deemed null and void beyond the scope of the mother law.

[1] Articles 75, 95, and 107(2) of the Constitution / [2] Article 71(1) and (2) of the former Water Supply and Waterworks Installation Act (amended by Act No. 10317, May 25, 2010); Article 65(5)1 and (6) of the Enforcement Decree of the Water Supply and Waterworks Installation Act

[1] Supreme Court Decision 2000Du2716 Decided August 24, 2001 (Gong2001Ha, 2084) Supreme Court Decision 2010Du3527 Decided October 25, 2012

A. The third district Housing Redevelopment and Improvement Project Association

The Director of the Seodaemun-gu Seoul Metropolitan Government Office (Law Firm Non-Surter International Law Firm, Attorneys Yu-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu26485 decided January 19, 201

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

The grounds of appeal are examined.

1. Where it is not clear whether a provision of an enforcement decree or a municipal ordinance conflicts with the mother law, the provision should not be declared null and void as a violation of the mother law, if it is possible to interpret the provision as consistent with the mother law by comprehensively taking into account other provisions of the parent law, the Enforcement Decree or municipal ordinance, its legislative purport, history, etc. This legal doctrine is based on the presumption principle that the conflict between the upper and lower rules should be excluded as much as possible, as the legal system of the State itself forms a unification. In addition, in a democratic state, the norm in the democratic state is based on the presumption principle that it conforms to the upper rules generally, and in a case where it is declared null and void as it actually goes against the upper rules, not only legal confusion and legal instability, but also legal gap and legal protection until a new norm is enacted, and it is also necessary to avoid such harm (see, e.g., Supreme Court Decisions 200Du2716, Aug. 24, 2001; 201Du35275, Oct. 25, 2012).

2. Article 71(1) of the former Water Supply and Waterworks Installation Act (wholly amended by Act No. 8370, Apr. 11, 2007; Act No. 10317, May 25, 2010; hereinafter “former Water Supply and Waterworks Installation Act”) which provides that “A waterworks business operator may impose all or part of the expenses on a person who has incurred expenses for the construction of waterworks (including a person who has incurred new installation or extension, etc. of waterworks facilities by installing facilities using a large number of tap water, such as a housing complex or industrial facilities) or a person who has carried on a business or act that causes damage to waterworks facilities, to bear all or part of the expenses incurred for the construction of the waterworks, maintenance of the waterworks facilities, or the prevention of damage to the waterworks facilities.” In light of the form, details and purport of the provision, “the standards for calculation of charges under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree.”

However, Article 65(5)1 of the former Enforcement Decree of the Water Supply and Waterworks Installation Act (amended by Ordinance No. 4902, Jan. 7, 2010; hereinafter “former Ordinance on Collection”) provides that “the amount equivalent to the charges for tap water that has become new or unusable due to the damage, etc. to water services facilities” as one of the charges imposed on a person who carries out a project or act that damages water services facilities. In addition, Article 3(2)3 of the former Ordinance on the Collection of Charges for Persons Causing Damage, etc. and for Persons Causing Damage to Water Supply and Waterworks (amended by Ordinance No. 4902, Jan. 7, 2010; hereinafter “former Ordinance on Collection”) also provides that “the charges for the amount of tap water that has become unusable or unusable due to the damage, etc. to water services facilities (hereinafter “water and compost”).

As can be seen, it is reasonable to impose expenses incurred in maintaining and preventing damage to water services facilities on those who have caused damage to water services facilities. It is reasonable to impose such expenses on those who have caused damage to water services facilities. It can be easily anticipated that the occurrence of tap water that has leaked or become unusable upon the damage to water services facilities occurs. As such, the waterworks business operator liable to supply tap water can smoothly achieve the business of supplying water by facilitating the business of supplying water, such as collecting, purifying, and purifying additional water as much as tap water that has leaked or become unusable and maintaining the whole water facilities that shall be preserved. Meanwhile, in light of the purport of Article 71(1) of the former Water Supply and Waterworks Installation Act, the imposition of charges on the damaged water is discretionary, inasmuch as the imposition of charges on the damaged water is based on the specific cause of water leakage, water leakage period and quantity, the degree of intention or negligence by the damager to water services facilities, the degree of intention or negligence by the waterworks business operator to expand damage to water leakages, the amount of charges corresponding to the responsibility shall be borne by the damaged person, and the

Considering the above subordinate norm’s principle of statutory interpretation, the legislative purport of the provision on the charge for causing damage to waterworks, the form and content of the relevant provision, and the possibility of judicial control over the discretion to impose the charge for causing damage to waterworks, etc., the “amount equivalent to the charge for tap water newly or unusable due to damage to waterworks, etc.” under Article 65(5)1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act and Article 3(2)3 of the former Ordinance on Collection can be interpreted as including “the cost necessary for maintaining the waterworks” under Article 71(1) of the former Water Supply and Waterworks Installation Act. Thus, the above enforcement decree or municipal ordinance’s provision cannot be deemed null and void beyond the scope of the mother law.

Nevertheless, the lower court determined otherwise and determined that the provisions of the above Enforcement Decree or Ordinance were null and void beyond the scope of the mother law. In so doing, the lower court erred by misapprehending the legal doctrine on whether subordinate regulations exceeded the scope of the mother law, or by misapprehending the legal doctrine on the scope of the damaged charges under the former Water Supply and Waterworks Installation Act, which affected the conclusion

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

Justices Park Poe-dae (Presiding Justice)