Agricultural Association Corporation of the Ministry of Agriculture and Forestry (Law Firm Sejongsan, Attorneys Kim Tae-hee, Counsel for defendant-appellant)

[Defendant-Appellant] Gun (Law Firm Lee & Lee LLC, Attorneys Lee Won-won et al., Counsel for defendant-appellant)

May 21, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of business suspension against the plaintiff on January 9, 2019 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is running a waste disposal business (comprehensive recycling business) at a place of business located in the Gangwon-gu Labor Group ( Address omitted).

B. On December 5, 2018 and December 6, 2018, the Defendant inspected the Plaintiff’s facilities, etc., and subject to prior notice and submission of opinions, on January 9, 2019, the Defendant issued a disposition of suspending business operations for three months against the Plaintiff on the grounds that non-compliance with the standards for recycling wastes (hereinafter “instant disposition”) (Article 13(1) and Article 13-2 of the Wastes Control Act) (hereinafter “instant disposition”), ② non-compliance with the standards for recycling wastes (non-compliance with the permission for alteration) (hereinafter “non-compliance with the permission for alteration”); ③ non-compliance with the foregoing consignment agreement (Article 25(9) of the Wastes Control Act) (hereinafter “non-compliance with the requirements for disposal”) (hereinafter “instant disposition”).

[Judgment of the court below] The ground for recognition is without dispute, Gap evidence Nos. 1 through 5, and the purport of the whole pleadings

2. The assertion;

(a) Defendant;

1) The Plaintiff: (a) created a fluorial soil as a wastewater treatment sewage (R-6-2) that can not be recycled as an afforestation (R-6-2) under the Enforcement Rule of the Wastes Control Act; and (b) sold it to the Yang Fluoral Video Co., Ltd. (hereinafter “Fluoral Video”); and (c) sold it to a limited liability company in December 2018 and around December 2018, the Plaintiff caused the said company to manufacture a fluoral soil containing wastewater treatment sewage (the grounds for disposition 1).

2) From November 2015 to June 2017, the Plaintiff dealt with the unauthorized radioactive waste without permission over about 20 times between around 20 times and around 2017 (Reasons for Disposition 2).

3) The Plaintiff prepares a false contract on waste disposal and consignment, such as preparing a contract without stating the unit price, contract amount, type, quantity, disposal method, place of transportation and disposal, expiration of contract period, etc. (Grounds for Disposition 3).

4) As such, the grounds for the instant disposition are recognized in entirety, and considering the public interest, etc. that is infringed upon by the Plaintiff’s illegal act, the instant disposition cannot be deemed to violate the principle of proportionality.

1) Non-existence of grounds for disposition

A) Ground for Disposition 1

(1) The Plaintiff merely recycled wastes, which were stored as “other wastewater treatment sewage,” into a fluorial soil, and did not have any fact that they were recycled into a fluoral soil. If the Plaintiff did not directly produce fluoral soil, it cannot be said that the Plaintiff violated the Wastes Control

(2) 45 days are needed for the Plaintiff’s production process and the Plaintiff’s lodging room for sale in consideration of the stabilization period of the Plaintiff’s production process and the Plaintiff’s lodging room for sale. Considering such processing period or the date of suffering wastewater treatment sewage, the lodging room supplied by the Plaintiff for the mass recording is not made by wastewater treatment, but by sewage treatment sludge, and sewage treatment sludge is allowed to be recycled by afforestation.

(3) Oral afforestation is a company that obtained permission to produce booms. The supply of booms by the Plaintiff is for use in the process of building booms by itself. Thus, the Plaintiff’s supply of booms to booms does not violate the recycling standards under the Wastes Control Act.

(4) Therefore, there is no ground for No. 1 disposition.

B) Disposition 3

(1) The Defendant, while conducting an inspection on the Plaintiff, requested the Plaintiff to present the “waste transaction agreement entered into with the relevant stock company on March 22, 2016,” but determined that the Plaintiff violated Article 25(9)4 of the Wastes Control Act as the Plaintiff did not find. However, the failure of the Plaintiff to submit the said agreement is due to the change of the mission of the relevant stock company after the conclusion of the contract, and the relevant contract actually exists.

(2) In the case of a waste entrustment contract, the items of “unit price and contract amount” among the terms and conditions of the contract shall be finally determined and stated by the discharger. As such, in the case of an interim or final waste disposal business entity, such as the Plaintiff, it is a general waste disposal contract structure for the Plaintiff to prepare a public contract and deliver them to the discharger for the specified amount, and then state the notified amount from the discharger. Therefore, it cannot be readily concluded that the Plaintiff entered the contract in bad faith on the ground that the pertinent terms and conditions of the contract constitute a public space, and the contract actually held by the discharger is written in full.

(3) Therefore, there is no ground for the 3 disposition.

2) Violation of the principle of proportionality

A) In the case of subparagraph 2, it is true that the Plaintiff treated the Fairness without obtaining permission. However, there is no difference between the Fairness and the wastewater treatment sewage treatment method, etc., and the concept of the radioactive wastewater treatment sewage includes the radioactive wastewater treatment method, which is more likely to have a level of pollution than the radioactive wastewater treatment, and there is no public interest that is infringed due to the act of treating the radioactive wastewater. The Plaintiff is merely treating the radioactive wastewater due to the radioactive error as long as the radioactive work began, and the Plaintiff did not completely treat the radioactive work after recognizing the issue, and the ratio of the radioactive waste treatment to the total radioactive waste treatment during the pertinent period by the Plaintiff is 0.6%.

B) In fact, among the grounds for disposal 3, certain types of wastes, volume, unit cost of transport, disposal method, and place of transport and disposal are blanks. However, this is merely based on trade practices, not intended to conceal the type of waste or disposal method. The Defendant can easily grasp the current status of waste disposal through “the proper system.”

C) In comparison with the public interest infringed upon by the Plaintiff’s act, the disposition of this case is significantly likely to cause damage to the Plaintiff, and due to the disposition of this case, sewage producers are unable to entrust waste disposal to the Plaintiff, thereby causing enormous impediment to the project.

D) In full view of these circumstances, the instant disposition is against the principle of proportionality.

3. Indication of the relevant regulations;

It is as shown in the attached Form.

4. Determination

A. As to the non-existence of grounds for disposition

1) Ground for the first measure

A) Relevant legal principles

(1) According to Article 13-2(1)5 of the Wastes Control Act, Article 14-3(1) [Attachment Table 5-3] 1(c) and [Attachment Table 4-3] 2 of the Enforcement Rule of the Wastes Control Act, a person who recycles wastes shall recycle the type of wastes that can be recycled by type, and wastes belonging to “other wastewater treatment sewage (51-1-8)” (R-6-1) can be recycled by “types (R-6-1) that produce refluent soil or soil improvement chemicals for landfill facilities by creating a molecular soil through the process of biological treatment. However, it cannot be recycled by refluence-6-2).

In light of the provisions and structure of the above Acts and subordinate statutes and the legislative intent of the above provisions that strictly stipulate the standards for recycling of wastes in order to protect the environment, in cases where a person who intends to recycle wastes belonging to “other wastewater treatment sludge” makes such wastes through the biological treatment process, he/she shall use the materials to produce stopy soil or land improvement chemicals for the landfill facilities. If he/she disposes of or uses such wastes for any other purpose for which recycling is not permitted without producing stopy soil or land improvement chemicals for the landfill facilities by using the stoke soil, he/she shall be deemed to violate Article 13-2(1)5 of the Wastes Control Act, Article 14-3(1) [Attachment Table 5-3] 1 of the Enforcement Rule

(2) Meanwhile, in an appeal litigation, the burden of proving the legality of the pertinent disposition is, in principle, a disposition agency asserting the legality of the relevant disposition, but where the disposition agency proves that it reasonably acceptable, the disposition is justifiable, and the assertion and proof of exceptional circumstances contrary thereto are returned to the other party’s responsibility (see Supreme Court Decision 2014Du2638, Jun. 28, 2016, etc.).

B) As to the accommodation supplied for smooth afforestation

(1) The following facts are acknowledged according to the purport of Gap evidence 5, Eul evidence 1 and the whole pleadings.

(A) From March 23, 2018, the Plaintiff suffered wastes belonging to “other wastewater treatment sewage” and produced booms using them.

(B) On April 18, 2018, on April 2018, 2018, the Plaintiff supplied accommodation in quantitative afforestation on four occasions on April 27, 2018, and on May 14, 2018, the Plaintiff produced scopical afforestation (emulation is an enterprise producing scopical afforestation only).

(2) In full view of these facts, as well as the following circumstances, the Plaintiff is recognized to have violated the Wastes Control Act and the Enforcement Rule of the same Act by making use of the materials belonging to the “other wastewater treatment wastewater” and supplying them to a mass recording that manufactures defeaculous video products without producing refacing soil or improving land for landfill facilities, by taking account of the following circumstances revealed by the respective descriptions of the evidence Nos. 3 and 4 (including each number; hereinafter the same shall apply) and the purport of the entire pleadings.

(A) In applying for a license for a waste treatment business (general recycling business), the Plaintiff calculated the storage period for the storage facilities, such as organic sludge (the “other wastewater treatment sludge” refers to one kind of organic sludge) as 13.7 days. The Plaintiff calculated and issued a guaranty insurance policy on the premise that the “number of days of disposal of the waste, such as the bridge, etc.” was 13.7 days. Accordingly, the Plaintiff appears to have taken approximately 13.7 days to make the organic sludge into the boom. In contrast, no evidence was submitted to deem that the Plaintiff actually made the 45 days’ lodging.

(B) On April 18, 2018, the Plaintiff first supplied sub-soil in the mass recording, supplied sub-soil in the mass recording, even after the lapse of 26 days from March 23, 2018, recognized that the Plaintiff suffered wastes belonging to “other wastewater treatment sewage”. The Plaintiff supplied sub-soil in the mass recording (after the lapse of at least 45 days from March 23, 2018).

(C) The Plaintiff asserts to the effect that he has produced and supplied the sub-soil in accordance with the “the principle of prior to the arrival of vessels.” The Plaintiff did not argue to the effect that he separately managed the “other wastewater treatment sewage” and “sewage treatment sewage” in the process of the production of the sub-soil. The Plaintiff did not submit any evidence supporting this part of the claim that the Plaintiff produced the sub-soil with the “sewage treatment sewage” rather than the “other wastewater treatment sewage”, such as the production method of the sub-soil, the inventory of the sub-soil and its raw materials.

(3) The grounds for this part of the disposition are recognized.

C) As to accommodation supplied for the public afforestation

(1) The following facts are acknowledged according to the purport of Gap evidence No. 11 and Eul evidence No. 2 and the entire pleadings.

(A) From November 20, 2018 to December 1, 2018, the Plaintiff supplied a 10-time fluence to the public green recording.

(B) On the relevant factory site prepared by the Plaintiff, the term “business category” is indicated in the “business type” column, and the term “use” column is public.

(C) In addition to producing green soil (R-6-2), it is an enterprise that can conduct recycling business (R-6-1) producing stove soil or soil improvement chemicals by creating sub-soil through the biological process as well as producing green soil (R-6-2).

(2) In full view of the following circumstances revealed by the factual basis and the purport of the entire pleadings, the Plaintiff is recognized to have violated the Wastes Control Act and the Enforcement Rule of the same Act by making booms with waste belonging to “other wastewater treatment sewage” and by supplying waste landfill soil or land improvement materials without producing them.

(A) As seen earlier, the Plaintiff produced dump as “other waste treatment sludge.” In principle, in order for the Plaintiff to recycle the said dump to the said dump in accordance with the recycling processing standards, it should be used to produce dump soil or land improvement chemicals. Nevertheless, in a case where the Plaintiff supplied the said dump to the dump to the bump cryp for 10 times without producing dump or land improvement chemicals, it constitutes exceptional circumstances that the said supply conforms to the recycling processing standards, and such circumstances must be asserted and proved by the Plaintiff.

(B) On the date of the delivery of the relevant sub-soil prepared by the Plaintiff, the “business category” column includes the “discepting materials” as well as the “use” column. As alleged by the Plaintiff, there is no evidence to deem that the government-run video was used only in the process of building a sub-soil that is produced by itself after being supplied with sub-soils from the Plaintiff. Furthermore, there is no evidence to deem that the government-run video was used only in the process of building a sub-soil that is produced by itself; furthermore, there is no evidence to deem that the Plaintiff, by using sub-soils supplied by the Plaintiff, produced re-concepting soil or land improvement agents, thereby

(3) This part of the disposition is also recognized.

(ii) Disposition No. 3

A) The Defendant stated that the contract between the Plaintiff and the stock company is not included in the grounds for disposition of the instant disposition.

B) The evidence submitted by the Plaintiff or the facts alone are insufficient to deem that, in the case of interim and final disposal business operators of wastes such as the Plaintiff, it is inevitable for the Plaintiff to prepare “unit price and contract amount” in the context of a waste treatment contract. Moreover, according to the overall purport of the statement and pleading in the evidence No. 6, the Plaintiff may recognize the fact that the Plaintiff prepared a waste disposal contract with the type, quantity, transport cost, disposal method, place of transport and disposal, contract period as a disturbance. Thus, the ground for disposal No. 3 is recognized.

B. As to the assertion of violation of the principle of proportionality

1) According to the aforementioned evidence, Gap evidence No. 12, and the purport of the entire pleadings, the following circumstances among the plaintiff's assertion are acknowledged. In other words, although the defendant considered that the contract was not prepared between the plaintiff and the corporation subject to disposition, it is reasonable to deem that this part of the grounds for disposition was withdrawn in the lawsuit in this case. However, as the Enforcement Rule of the Wastes Control Act was amended by Ordinance of Ministry of Environment No. 664 on July 21, 2016, the "in cases of adding wastes to be recycled without changing the detailed types of recycling" was changed from the important matters subject to permission to change waste disposal business to the matters requiring a report of change of waste disposal business. In light of such revised legislative legislation, the prosecutor of the Seoul Central District Prosecutors' Office suspended the prosecution against the plaintiff and the non-party representative director on the violation of the Wastes Control Act on February 27, 2019.

2) However, considering the aforementioned circumstances, comprehensively taking account of the following facts and circumstances, it is difficult to deem that the instant disposition goes against the principle of proportionality and is unlawful, as it goes against the principle of proportionality.

A) The Plaintiff, in violation of the recycling processing standards, supplied fluorites containing “other wastewater treatment sludge” to a video product producer, and this constitutes an act of directly causing harm to the environment. As can be seen, the Plaintiff’s transfer of fluorites supplied by the Plaintiff. The Plaintiff appears not to have properly managed the R-6-1 type of wastes and other wastes, and if the Defendant did not inspect, it is highly likely that such recycling processing standards will continue to exist.

B) From November 2015 to June 2017, the Plaintiff treated non-permitted wastewater without permission for modification over about 20 times. The frequency of violations is considerably long. Even if there is no big difference between the process of treating wastewater and the wastewater treatment sewage as alleged by the Plaintiff, and the degree of pollution is higher than the process sewage, Article 4-2(2) [Attachment Table 4-2] of the Enforcement Rule of the Wastes Control Act sets the recycling processing standards by classifying wastewater treatment sewage in detail. Even after the amendment by Ordinance of the Ministry of Environment under Article 664 of the Enforcement Rule of the Wastes Control Act, it is difficult to readily conclude that the waste treatment business should be reported for modification of the waste treatment business without changing the detailed type of recycling, taking into account social expenses, such as environmental pollution that may occur in relation to waste treatment, etc., if the waste treatment business is to be reported for modification or modification of the waste treatment business as alleged by the Plaintiff.

C) The Plaintiff prepared a false contract without stating the unit price, contract amount, type, quantity, disposal method, place of transport and disposal, and expiration date of contract period in relation to waste disposal and consignment. As such, requiring the State and local governments to enter the details of the contract in the contract is intended to understand the current status and actual condition of waste disposal. In this case, if the Plaintiff did not properly state the matters to be entered in the contract as in the instant case, it seems that the Defendant and local governments like the Defendant manage wastes, and there is considerable difficulty in supervising the disposal thereof. Even if the Defendant can confirm matters concerning waste disposal and acceptance within a certain scope through the electronic information processing program, the obligation to prepare the contract and the obligation to enter the electronic information processing program are different in terms of the scope of the subject to whom the obligation is to bear the obligation to enter the contract and the obligation to prepare the information processing program are to be fulfilled, and the public interest is still significant. It is also true in light of the fact that the Wastes Control Act and the Enforcement Rule of the same Act provide for the obligation to enter the information processing program of the waste disposal business operator and the aforementioned obligation to prepare and keep wastes.

D) On January 19, 2016, the Plaintiff issued a disposition of suspension of business of one month and three million won for a violation of the obligation of a waste disposal business operator (Article 25(9) of the Wastes Control Act), (2) on August 11, 2016, imposing a penalty surcharge of KRW 10 million for a violation of the standards for recycling wastes and specific recycling methods (Article 13-2 of the Wastes Control Act) on August 11, 2016, and (3) on a violation of the obligation of a waste disposal business operator on March 22, 2017 (Article 25(9)4 of the Wastes Control Act), and (4) on July 18, 2017, the Plaintiff continuously filed a civil petition with the Defendant for a violation of the standards for recycling (Article 13-2 of the Wastes Control Act), and (5) million won for a malodor generated in the nearby place of business. Nevertheless, the Plaintiff continuously filed a civil petition to the Defendant, despite the Plaintiff’s violation of the Wastes Control Act.

E) The instant disposition for the three-month period of business suspension is calculated by adding one-month suspension period to the lowest level of the respective administrative disposition criteria set forth in Article 60 of the Wastes Control Act, Article 83(1) [Attachment Table 21] 2(c)(f), 13(c)(2), and 15(b) of the Enforcement Rule of the Wastes Control Act. The Plaintiff already received two administrative dispositions for each violation of Article 13-2 of the Wastes Control Act, Article 25(9) of the same Act, Article 25(11) of the Wastes Control Act, Article 25(11)2 of the same Act, and Article 83(1) [Attachment Table 21] 2(f) of the Enforcement Rule of the Wastes Control Act, and Article 83(2)(c)(2)(2) and 15(b) of the Enforcement Rule of the Wastes Control Act. The instant disposition may not be deemed to be appropriate for the Plaintiff to have violated the principle of proportionality by treating the Plaintiff.

5. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

[Attachment]

Judges Sung Ho-ho (Presiding Judge)