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Ulsan Metropolitan City Head of Ulsan Metropolitan City (Law Firm International Law, Attorney Lee Dong-young, Counsel for the defendant-appellant)

February 27, 2015

Ulsan District Court Decision 2013Guhap1632 Decided September 18, 2014

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s disposition of imposing KRW 168,531,200 on the Plaintiff on July 19, 2013 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: (a) the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter "Water Quality Conservation Act") in Section 10 of Section 2 of the judgment of the court of first instance shall be construed as "Water Quality Conservation Act"; (b) the term "Article 17 of the Water Quality Conservation Act" as "Article 17 of the Water Quality Conservation Act"; and (c) the term "amount exceeding 10 cubic meters/day" in Chapter 9 as "amount exceeding 10 cubic meters/day"; and (d) the reasoning for the judgment of the court of first instance shall be stated in the main sentence of Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, except for adding the following judgments:

2. Additional determination

A. The defendant's assertion

Article 61 (1) of the former Sewerage Act provides that "A public sewerage management authority may require the owners of buildings, etc. that can discharge sewage of more than the quantity prescribed by Presidential Decree into a public sewerage system to bear all or part of the cost of rebuilding the public sewerage system", which stipulates that only "the volume of sewage discharged into a public sewerage system" shall be prescribed by Presidential Decree. Article 35 (1) of the former Enforcement Decree of the same Act provides that "the owner of a building, etc. that can discharge sewage of more than the quantity prescribed by Presidential Decree into a public sewerage system" means a person who intends to newly discharge or increase sewage of more than 10 cubic meters per day by newly constructing, enlarging, or altering the use of a building, etc., "the volume of sewage discharged into a public sewerage system", which is delegated by Article 61 (1) of the former Sewerage Act, and thus becomes null and void beyond the scope delegated by the mother Act.

B. Determination

The Enforcement Decree or the Enforcement Rule of the Act cannot change or supplement the contents of rights and obligations of an individual unless otherwise delegated by the Act, or prescribe new contents that are not provided for by the Act. However, even if the contents of the Enforcement Decree or the Enforcement Rule of the Act are not clearly and systematically examined the legislative purport of the parent law and the entire provisions of the relevant provisions, and thus, if they are intended to embody them based on the purport of the parent law, it shall not be deemed to exceed the scope of the parent law’s regulation. Thus, even if there is no provision of direct delegation of the parent law, it shall not be deemed null and void (see Supreme Court Decision 2008Du13637, Jun. 11, 2009).

The purpose of the former Sewerage Act is to impose an obligation on a person who installs a building, facility, etc. discharging sewage (hereinafter referred to as "building, etc.") for installation of a private sewage treatment facility (Article 34(1)); on the other hand, where a building, etc. is extended beyond the scale prescribed by Presidential Decree, or its use is changed for any purpose prescribed by Presidential Decree, and where the quantity of sewage generated from the building, etc. increases, the relevant building, etc. requires the owner of the building, etc. to install a private sewage treatment facility or increase the treatment capacity of the private sewage treatment facility (Article 35(1)); and on the other hand, to install a private sewage treatment facility or increase the treatment capacity of the public sewage treatment facility only after the change of use is made; on the other hand, the amount borne by the owner of the building, etc. is to impose the cost on the person who causes new construction or expansion of the public sewage treatment facility (see Supreme Court Decision 2010Du7604, Oct. 11, 2012).

Therefore, this part of the defendant's argument is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is just, and the defendant's appeal is dismissed as it is groundless.

Judges Park Jae-soo (Presiding Judge)