(영문) 춘천지방법원 강릉지원 2016.10.13.선고 2016구합95 판결

2. Of the costs of lawsuit, the part pertaining to the participation by the Intervenor shall be borne by the Intervenor, and the remainder shall be borne by the Plaintiff.

Purport of claim

Disposition imposing KRW 24,260, 600 on the Plaintiff on November 26, 2015 by the Defendant.

(b) revoke this subsection.

Reasons

1. Details of the disposition;

A. On July 1, 2015, the Plaintiff entered into a lease agreement with the Plaintiff’s Intervenor B (hereinafter “Supplementary Intervenor”) and the Plaintiff’s Intervenor to lease the instant building for a period of five years from July 1, 2015, as the owner of the Seocho-si Building (hereinafter “instant building”) located in the previous retail store.

B. On July 13, 2015, D, the assistant intervenor’s wife, filed a report on the general restaurant business with the Defendant on July 13, 2015 at the location of the place of business on the 3m square meters of the instant building. Around August 20, 2015, with the knowledge that the sewerage burden may be imposed according to the quantity calculated in proportion to the area, the assistant intervenor filed a report on the succession to the status of food business operators on August 20, 2015, and filed a report on the change of the reported food entertainment business with the content of reducing the business site area to one square meter on August 21, 2015 and changing the business site area to 215 meters. The assistant intervenor filed a report on the change (hereinafter “instant business report”).

C. On November 26, 2015, the Defendant changed the use of the instant building to 52 square meters at the retail store on December 512, 2012, hereinafter “general restaurant 215 square meters and retail store 52 square meters,” with respect to the Plaintiff, pursuant to Article 61 of the Sewerage Act and Article 16 of the Municipal Ordinance on the Use of Sewerage at Chicago, on the ground that wastewater was generated from 0’s previous “0” to 51 square meters from 19.5 meters from 19.5 meters from 19.

31, 450, and 120 won borne by the sewerage ( = 19.5m of square meters (general restaurant 05m + 46m of retail store)/day x 1,612,00 won/m).

D. On December 15, 2015, the Plaintiff raised an objection against the Defendant on December 15, 2015, but the Defendant dismissed the Plaintiff’s objection on December 28, 2015.

E. The Plaintiff filed an administrative appeal with the Gangwon-do Administrative Appeals Commission on January 19, 2016, but March 3, 2016.

14. The dismissal was made.

F. Meanwhile, the Defendant issued a disposition to reduce the amount of the sewage burden imposed on the Plaintiff to KRW 24,260,60 ( = 05m/day X1, 612,000/m2 of general restaurants) with the knowledge that the application of the relevant amended Act and subordinate statutes on September 6, 2016, which was pending the instant lawsuit, by reducing the amount of the sewage burden imposed on the Plaintiff (46m/day) by 24,260,60 won (=the disposition of imposing the remainder of the sewage burden imposed upon the Plaintiff upon the Plaintiff during the initial disposition).

【Grounds for Recognition】

Gap Evidence Nos. 1 through 4, Eul Evidence Nos. 1 through 6, 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

① Inasmuch as the purport of Article 61(1) of the Sewerage Act is to bear expenses to a person who causes sewage, it shall be interpreted that the owner of a building reports the new construction, extension, or alteration of the purpose of use of a building and thereby imposes an amount borne by the burden on the owner thereof. Moreover, the assistant intervenor merely reported the business of the building in this case and did not have any cause as prescribed by the relevant Act and subordinate statutes since there was no separate change of the purpose of use of the building in this case. Nevertheless, the instant disposition based on the premise that the Plaintiff committed an act of changing the purpose

② The circumstance that the Plaintiff did not participate in the process of the instant business report and that the owner of the building should bear the burden of borne by the burden was known only to the lower court or the lower police officer around September 2015, 2015, which was after the Intervenor had already completed construction for business, and such circumstance was not anticipated at the time of entering into a lease agreement. As such, if the lessee reported the business of the building by changing the purpose of the building without the involvement of the owner of the building, and the burden of borne by the owner of the building was imposed, the Defendant notified the Plaintiff, the owner of the instant building, of the fact that the burden of borne by the Plaintiff was imposed in advance during the process of accepting the instant business report

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

(1) ① Determination on the assertion (A) Article 61(1) of the Sewerage Act provides that a public sewerage management authority may require the owner of the relevant building, etc. (in cases of construction or construction, referring to the owner of the building or the construction entity) to bear all or part of the cost of rebuilding the public sewerage, and Article 35(1) of the Enforcement Decree of the Sewerage Act provides that "if wastewater is increased by at least the amount prescribed by Presidential Decree, as prescribed by Article 61(1) of the Sewerage Act, it shall refer to cases where the amount increases by at least 10 meters a day." Article 61(3) of the Sewerage Act provides for the calculation criteria and method of calculating the amount borne by the burden of borne persons pursuant to delegation of Article 61(3) of the Sewerage Act, and Article 16(1)2 of the Seocho-si Ordinance on the Use of the Public Sewerage Act provides for the imposition of the burden of borne persons if wastewater is at least 10 meters a day due to each administrative act, such as new construction, extension, or alteration of use.

According to the relevant laws and regulations, an administrative agency may impose an amount borne by the owner of a building on the owner of the building in question if the requirements of new construction, extension, or alteration of use of buildings, etc. and new discharge or increase of sewage more than 10 meters per day are met pursuant to Article 61(1) of the Sewerage Act.

Meanwhile, according to the proviso of Article 19(3) of the Building Act, Article 14(4)2 of the Enforcement Decree of the Building Act, the use of Class 1 neighborhood living facilities and Class 2 neighborhood living facilities is legitimate by using them for the original purpose and for any other purpose without the need to file an application for modification of the entries in the building ledger, to the extent consistent with the restrictions on the use prescribed by the National Land Planning and Utilization Act or other relevant Acts and subordinate statutes. According to the above Enforcement Decree [Attachment 1], a retail store selling daily products, such as food, miscellaneous, miscellaneous, clothes, perfects, building materials, medicines, medical appliances, etc. (where there are two or more buildings in one site, it shall be deemed the same building) and the total floor area used for the relevant purpose is less than 1,000 meters (Article 3(1)(a) of the Enforcement Decree of the Building Act shall belong to Class 1 neighborhood living facilities, and Article 4(4)(2)(i) of the Enforcement Decree of the Building Act constitutes Class 2 neighborhood living facilities.

(B) Comprehensively taking account of the overall purport of the arguments in Gap evidence No. 4, the plaintiff leased the building of this case, which was used for retail stores, to the supplementary intervenor for the purpose of general restaurant use. The supplementary intervenor, changed the building of this case to general restaurant use and completed the pertinent business report.

(C) In applying the above facts, the instant building can be viewed as legitimately altering its use without the need to undergo the application procedure for permission and report on the alteration of use or the alteration of the entries in the building ledger from the previous retail stores falling under Class 1 neighborhood living facilities to the general restaurant falling under Class 2 neighborhood living facilities. This constitutes the alteration of use of the building as provided by Article 61(1) of the Sewerage Act. Such alteration of use constitutes the alteration of use of the building. Furthermore, even though the supplementary intervenor committed specific acts, such as the alteration of the inside of the instant building, the supplementary intervenor performed the alteration of use.

Even if the Plaintiff, as the owner of the building of this case, leased the building of this case to the Intervenor as the owner of the building of this case, and permitted the above alteration of the purpose of use, etc.

Therefore, it is reasonable to deem that the Plaintiff was performed by exercising the disposal right. (D) As the owner of the building of this case, the Plaintiff constitutes a person subject to the imposition of sewerage burden due to the alteration of the use of the building. Accordingly, the Plaintiff’s assertion against this is without merit.

(2) Judgment on the argument

In the instant building, where a change of the purpose of use is lawfully made only by changing the purpose of use without following the procedure of permission and report on the change of purpose of use or the procedure of applying for change of the entries in the building ledger, and a ground for imposing an amount borne by a sewerage burden arises, the administrative agency does not have any legal basis for notifying the owner of the building of the possibility of imposing an amount borne by the sewerage burden when accepting the business report on the change of purpose of use in the procedure of imposing the charges. Therefore, the Plaintiff’s assertion

The Plaintiff’s assertion is related to the violation of Articles 21 (Advance notice of disposition) and 22 (Hearing Opinion) of the Administrative Procedures Act, and comprehensively taking account of the overall purport of the pleadings, the following circumstances may be acknowledged. In other words, D, the wife of the Intervenor, reported general restaurant business on July 13, 2015 to the Defendant on the 545th m of the instant building, and the relevant employee notified the Plaintiff of the fact that the sewage burden is imposed upon the building owner upon the receipt of the report at the time of receipt of the report on the business, and specific details according to the relevant area. After that, the Intervenor reported the succession to the status of food business operator on August 21, 2015, and changed the area of the relevant place of business to 1m20,000 square meters, and the Plaintiff notified the Plaintiff of the change of the area of the instant disposition to 15m of the size of the Plaintiff’s establishment and notified the Plaintiff of the change to 215m of the reported area.

Therefore, the plaintiff's assertion 2 is without merit.

3. Conclusion

Therefore, the claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.