[1] The validity of a municipal ordinance that provides for matters concerning the limitation of residents' rights or the imposition of obligations without delegation by an Act (negative)

[2] Whether a resident convenience facility is included in a waste disposal facility to be installed by a project implementer under the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (negative), and whether the relevant cost of installing waste disposal facilities includes the cost of installing the resident convenience facility

[3] Whether the calculation of the cost of installing waste disposal facilities is unlawful in cases where the Mayor, etc. calculated the charge after setting the “amount of waste generated per day” using data such as the quantity of waste generated adjacent to the time of commencement of the development project rather than the market price, and population of population, etc. (negative in principle)

[1] Article 22 of the Local Autonomy Act, Article 4 (3) of the Framework Act on Administrative Regulation / [2] Articles 2, 6, and 20 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Act No. 12077, Aug. 13, 2013); Article 4 of the Enforcement Decree of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Presidential Decree No. 25165, Feb. 11, 2014); Article 2, 6, and 20 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Act No. 12077, Aug. 13, 2013); Article 4 of the Enforcement Decree of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (Amended by Presidential Decree No. 25165, Feb. 11, 2014)

[1] [2] Supreme Court Decision 2016Du3529 Decided November 29, 2018 (Gong2019Sang, 163) / [1] Supreme Court en banc Decision 2010Du19270 Decided November 22, 2012 (Gong2013Sang, 51)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Ho-ho, Counsel for defendant-appellant)

Sung-nam City (Law Firm Doll, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu25735 decided December 12, 2013

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

The grounds of appeal are examined.

1. Plaintiff’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

A. Regarding ground of appeal No. 1

(1) According to Article 6(1) and (2) of the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 12077, Aug. 13, 2013; hereinafter “Waste Facilities Promotion Act”), and Article 4(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 25165, Feb. 11, 2014; hereinafter “Enforcement Decree”), a person who intends to develop a multi-family housing complex or a housing site with a development area of at least 30,00 square meters (hereinafter “project implementer”) shall pay an amount equivalent to the installation cost of incineration facilities and food waste treatment facilities for treating wastes generated from the apartment complex or housing site (hereinafter “the amount corresponding to the installation cost”), and the Mayor, etc. shall use the amount received for installing waste treatment facilities to treat wastes generated from the relevant multi-family housing complex or housing site in question.

Meanwhile, according to Article 4(3) of the Enforcement Decree of the Waste Facilities Promotion Act upon delegation of Article 6(4) of the same Act, the amount of installation costs shall be calculated by dividing the cost incurred in purchasing the site for facilities and the cost incurred in installing incineration facilities into the cost incurred in installing the site for facilities, and the cost incurred in installing incineration facilities shall be calculated based on the “amount of wastes anticipated to have occurred a day in the relevant housing site, etc.” Furthermore, Article 8(1) [Attachment 1] of the former Ordinance on Promotion of the Installation of Seongbuk-si Waste Treatment Facilities and Assistance, etc. to their Environs (amended by Ordinance No. 2914, Oct. 12, 2015; hereinafter “instant Ordinance”) provides that the amount calculated by multiplying the quantity of wastes generated per person by the estimated number of population and the potential change in the number of wastes generated per person per day by one day.

(2) The lower court determined that Article 8(1) [Attachment 1] of the instant Ordinance does not stipulate any more aggravated standard than Article 4(3) of the Enforcement Decree, but it cannot be deemed null and void, considering the fact that it is desirable for waste disposal facilities to be established on the basis of the maximum value of wastes expected to occur a day, and that the application of the fluctuation coefficient 1.3 to calculate the maximum value of wastes expected to occur a day by day is reasonable and objective grounds in light of the actual status of the operation of waste disposal facilities.

Examining the record in accordance with the relevant legal principles, such determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the validity of municipal ordinances.

B. Regarding ground of appeal No. 2

A court shall decide whether a factual assertion is true in accordance with logical and empirical rules on the basis of the ideology of social justice and equity with free evaluation of evidence taking into account the overall purport of pleadings and the result of examination of evidence (Article 8(2) of the Administrative Litigation Act, Article 202 of the Civil Procedure Act). The judgment belongs to the exclusive authority of the fact-finding court unless it exceeds the bounds of the principle of free evaluation of evidence (see Supreme Court Decision 2013Du925, Mar. 24, 2016).

The lower court determined that in the instant business district, it cannot be deemed that whether the Defendant installed waste disposal facilities, if installed, to install in a certain area, since the ordinary waste in the instant business district is planned to be disposed of at the lag incineration facilities, and food waste is planned to be disposed of at the food waste disposal facilities located in the Mannam-si.

Examining the record, the lower court’s determination is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending relevant legal doctrine.

C. Regarding ground of appeal No. 3

(1) The “development cost per square meter” under Article 8(1) [Attachment 1] of the instant Ordinance refers to the development cost of a housing site in the relevant housing site development zone as determined by the Housing Site Development Promotion Act (see Supreme Court Decision 2013Du8431, Dec. 15, 2016).

(2) In the same purport, the lower court’s determination that the Defendant’s measure, out of the amount of installation costs, calculated based on the housing site development cost per square meter in the instant project district, is justifiable is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the validity of Article 8(1) [Attachment 1] of the instant Ordinance or the standards for calculating the cost for the purchase of waste disposal facilities.

D. Regarding ground of appeal No. 4

(1) According to Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulations, where a local government establishes a municipal ordinance with respect to the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, there must be statutory delegation. Therefore, the municipal ordinance with respect to the restriction on the rights of residents or the imposition of obligations on residents without statutory delegation has no validity (see Supreme Court en banc Decision 2010Du19270, Nov. 22, 2012).

In light of the language, structure, etc. of the provisions of the Waste Facilities Promotion Act, convenience facilities for residents are not included in the waste disposal facilities to be installed by a project implementer, and the cost of installing the relevant facilities does not include the cost of installing convenience facilities for residents (see Supreme Court Decision 2016Du3529, Nov. 29, 2018).

However, Article 8(2) of the Ordinance of this case (hereinafter “Ordinance of this case”) provides that a person who installs environmental energy facilities with a disposal capacity of at least 50t per day shall install residents’ convenience facilities within the scope of 10/100 of the cost of installing environmental energy facilities (referring to the cost of installing facilities, excluding site, compensation cost, and facility incidental cost) and, if the residents’ consultative body does not want to install all or part of the convenience facilities, the amount equivalent to the cost of installing the facilities shall be contributed to the Fund.

Therefore, the provisions of this case are nothing more than a new legislation that goes beyond the limit of delegation by expanding them beyond the scope of possible interpretation of the Act on the Promotion of Waste Facilities and the Enforcement Decree.

(2) Nevertheless, the lower court determined that the instant disposition, which included the cost of installing the waste disposal facilities, was lawful on the grounds that if the cost of installing the waste disposal facilities to be paid by the project implementer is not included in the cost of installing the facilities for the convenience of residents, the burden of the Mayor, etc. to install the facilities for the convenience of residents by means of his/her own account (tax of residents) would result in a violation of the legislative intent. In so doing, the lower court erred by misapprehending the legal doctrine on calculating

2. As to the Defendant’s ground of appeal

A. The lower court: (a) premised on the premise that, in order to determine the expected daily waste amount, which serves as the basis for calculating the instant charges, the installation cost, it should be recognized by using basic data, such as the quantity of waste generated at the time near the time of disposal and the population, etc.; and (b) recognized the anticipated amount of waste generated per day using basic data near the time of commencement of the instant disposal, rather than the basic data adjacent to the time of the instant disposal, determined that the part exceeding the reasonable amount calculated based on the basic data adjacent to

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Article 4(5) of the Enforcement Decree of the Act provides that a person who intends to pay the corresponding amount of installation costs shall submit a payment plan to the head of the Si, etc. having jurisdiction over the relevant area prior to the commencement of the relevant development project, and the Mayor, etc. in receipt of the payment plan shall verify whether the payment plan is appropriate and notify the person who submitted the payment plan of the amount to be paid and the payment deadline. In addition, the instant Ordinance provides that the “amount of daily waste generated per capita” calculated by multiplying the “amount of waste generated per person,” which is divided into the population of Seongdong-si in the previous year by the expected number of population and the change factor in the housing site development zone, and does not provide for any provision regarding the “amount of waste generated per day” calculated by multiplying the “amount of waste generated per person,” and does not provide for any provision regarding the “amount of waste generated at a certain time

As can be seen, there is no provision regarding the base point of time for calculating the “amount of daily waste expected to have occurred” even with detailed provisions regarding the time when the payment plan was submitted and the relevant installation cost calculation standard. Thus, even if the market et al. calculated charges after setting the “amount of daily waste anticipated to have occurred” using basic data near the time when the disposal was commenced rather than the market price, barring special circumstances, such as the occurrence of sudden changes in basic data and the occurrence of a significant unreasonable measure not reflected in determining the “amount of daily waste anticipated to have occurred”, the calculation of the relevant installation cost cannot be deemed unlawful.

(2) According to the reasoning of the lower judgment and the evidence duly admitted, the following can be revealed: (a) during the period between 2007 and 2010, near the time of the commencement of the instant project district, the daily waste generation amount of 1st day in Sungnam-si has been reduced from 384,200 g to 332,40 g; (b) the amount of food waste generation has increased from 214,100 g to 229,200 g; (c) the population in Sungnam-si has changed from 953,960 to 996,524 g; and (d) the payment plan to be submitted by the Plaintiff prior to the commencement of the development project was submitted at the expiration of three years after the commencement of the development project.

Considering the change in the scope of basic data and the developments leading up to the delay in the disposition of this case, it is difficult to deem that the Defendant’s failure to reflect the change in the content of the change on the recognition of the expected volume of waste generated per day is considerably unreasonable. Thus, the instant disposition cannot be deemed unlawful solely on the ground that the Defendant calculated the charge based on basic data not adjacent to the time of

C. Nevertheless, the lower court determined otherwise that the part exceeding the charges calculated on the basis of basic data near the time of the instant disposition was unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the relevant amount of installation costs, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min You-sook (Presiding Justice)