The case holding that a chemical product manufacturing company's failure to operate the facilities to prevent the emission of pollutants constitutes a justifiable act in the event that there are circumstances to presume that the chemical product manufacturing company's failure to operate separate prevention facilities is a facility that discharges pollutants below the permissible emission levels at all times, such as being judged to be appropriate in the investigation of the emission of pollutants on several occasions, even if it

The case holding that in light of the circumstances leading up to the violation of the Clean Air Conservation Act, including Article 15 (1) 1 of the former Clean Air Conservation Act (amended by Act No. 5961 of Apr. 15, 199), the above violation does not constitute an unlawful act on the ground that, in light of the following: (a) the various obligations imposed on a business operator with respect to emission and preventive facilities are ultimately to regulate the quantity of air pollutants emitted from emission facilities below the permissible emission levels; (b) the company knew that emission facilities were operated as suitable facilities even if they were operated without separate preventive facilities; (c) the quantity of pollutants emitted from the operation of the above emission facilities does not considerably exceed the permissible emission levels under the above Act; and (d) it is apparent that the obligation to install preventive facilities would have been exempted if the permission for the alteration of emission facilities was obtained in accordance with the procedure under Article 10 (4) of the above Act; and (d) the protection of legal interests and interests of the above Act as well as the extent of actual

[1] Article 20 of the Criminal Act, Articles 8, 10(1) and (4), 11(1), and 15(1)1 of the former Clean Air Conservation Act (amended by Act No. 5961 of Apr. 15, 199)

Defendant 1 and one other

Defendants

A Law Firm, Attorneys B et al.

Busan District Court Decision 2000Ra1630 delivered on January 17, 2001

The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of the facts charged and the judgment of the court below

The summary of the facts charged in this case is that Defendant 1 was a general manager of the environmental emission facilities of the above company and the defendant company was established for the purpose of manufacturing and selling organic synthetic resin as the general manager of the defendant 2 corporation (hereinafter the defendant company). ① on September 9, 1999, the defendant 1 did not operate preventive facilities despite the discharge facilities, which are 5.57 square meters of building facilities at the defendant company's place of business located in Nam-gu Busan Metropolitan City, and 5.57 square meters of building facilities x 1 (hereinafter the "building facilities in this case"). ② The defendant company did not operate preventive facilities when the defendant 1 operated discharge facilities as mentioned above in the above date and at the above place. The court below recognized all the facts charged by the defendant 1 with partial statement, etc., and sentenced the defendant 1 to a fine by applying Article 4 of the former Clean Air Conservation Act (Act No. 4262) and Article 15(1)1 of the former Clean Air Conservation Act and Article 60 million won to the defendant company.

2. Grounds for appeal by a defense counsel;

A. Points of mistake of facts

According to each inspection report, etc. compiled in the record, even though it can be known that the building facility of this case is a facility that discharges pollutants below the permissible emission levels, the court below did not recognize the above facts.

(b)the point of the legal scenarios;

(1) However, in light of the purport of Article 11(1) main text of the former Clean Air Conservation Act, Article 15(1)1 through 4 of the same Act, and Article 55(1)1 and 5 of the same Act, the acts falling under Article 15(1)1 or 5 of the same Act are punished by the same sentence, etc., the legislative intent of Article 15(1) of the same Act is to punish only cases where pollutants are discharged in excess of the permissible emission level, so long as the building facilities of this case always emit pollutants below the permissible emission level as seen in the above Section A, the facts charged in this case are not guilty.

(2) Even if the construction facility of this case falls under the element of a household, there is no illegality as it constitutes a "permissible risk" that is always below the permissible permissible emission level under Article 8 of the Clean Air Conservation Act, and the Defendants are not guilty in a case where pollutants are always discharged below the permissible emission level on the basis of the characteristics of fuel used in the construction facility of this case and the result of the measurement of pollutants measuring agency, which is not punished under Article 55 of the same Act. Thus, the Defendants are not guilty on the grounds that they are not responsible for legal errors.

3. Judgment of the court below

(a) Basic facts and relevant legislation;

(i)basic facts;

According to the records, the Defendant Company was operating with the permission to install emission facilities, which are the gas absorption tower, screen, etc., on May 11, 1972 with respect to the production facilities of organic and inorganic medicine after obtaining permission for the installation of emission facilities on May 11, 1972. The 12 construction facilities including the building facilities of this case were originally included in the above synthetic manufacturing facilities. As the Clean Air Conservation Act enters into force with subdivided environmental law, the Defendant Company reported the alteration of 12 construction facilities including the building facilities as separate air emission facilities on September 18, 191. The above building facilities were not related to the above synthetic manufacturing facilities and the manufacturing facilities connected to them as one of the above construction facilities, and reported the alteration of the above facilities as they were, without being connected to the above facilities under the jurisdiction of the Defendant Company 19, to the facilities under the jurisdiction of the Ministry of Environment for Food and Drug Improvement (the above construction facilities are not related to the construction facilities of this case. The Defendant Company did not have a separate operation of the facilities under the jurisdiction of the company 1900th new emission facilities.

(2) Relevant statutes

Article 8 of the former Clean Air Conservation Act (amended by Act No. 5961 of Apr. 15, 199 (amended by Act No. 5961 of Oct. 16, 199; hereinafter the same shall apply) provides that "the person who has obtained permission or filed a report with the Minister of Environment with respect to the installation of emission facilities" under Article 10 (1) of the same Act provides that "if the person who has obtained permission or filed a report with respect to the installation of the above emission facilities installs the above emission facilities, he shall install the atmosphere preventive facilities to emit pollutants below the permissible emission levels under Article 8," and the proviso provides that "if the person has installed the above emission facilities, he shall not install the atmosphere preventive facilities to ensure that pollutants discharged from the emission facilities meet the standards under the Presidential Decree, Article 6 of the Enforcement Decree of the above Act provides that 1. The function and process of the emission facilities are always discharged below the permissible emission levels under Article 8 of the Act, Article 10 (1) of the same Act provides that the person shall submit documents other than those prescribed by the Minister of Environment.

(b) Markets:

(1)First, as to the erroneous determination of facts, according to the results of the appraisal commission to the Health and Environment Research Institute of Busan Metropolitan City on October 25, 1999, the inspection report (14 pages of investigation records), the new environmental industry of October 6, 199 (98 pages of trial records), the notice of the inspection result (17 pages of investigation records), the notice of the result of the inspection of October 8, 1999 of the preparation of the red-interest environment (17 pages of investigation records), the notice of the result of the inspection of July 2, 2001 (the summary of the pleadings submitted on August 13, 2001), and the notice of the inspection result of the examination of the Health and Environment Research Institute of Busan Metropolitan City on August 13, 2001, the prosecutor's allegation that the pollutants generated at the time of the building operation of the facility of this case are no longer than the permissible emission level of 1 to 20,000 to 106,000 m of the facility of this case.

(2) Next, based on the judgment of the above (1), it is difficult to conclude that the pertinent facts charged do not constitute a violation of Article 15 (1) 1 through 4 of the former Clean Air Conservation Act, as the form of the act is different from that of Article 15 (1) 1 through 5 of the former Clean Air Conservation Act, it cannot be deemed that it is an example provision of Article 15 (1) 5 of the former Clean Air Conservation Act, and the reasons cited by the defense counsel alone is insufficient to conclude that Article 15 (1) of the same Act intends to punish only if the emission facility discharges pollutants in excess of the permissible emission level.

In other words, the defense counsel's assertion appears to be on the premise that the business owner is not obligated to install preventive facilities and thus, the business owner is not obligated to operate preventive facilities under Article 15 (1) 1 of the Clean Air Conservation Act. As seen in the above-mentioned legal part, the main text of Article 10 (1) of the same Act provides for the business owner's obligation to install preventive facilities and the duty to report on installation of preventive facilities under Article 11 (1) of the same Act, Article 15 of the same Act provides for the business owner's obligation to act or omission of preventive facilities under Article 10 (1) of the same Act, and it is clear that the business owner is obligated to install preventive facilities under Article 15 (1) of the same Act, but it is also obvious that the business owner is obligated to install facilities under the proviso of Article 10 (1) of the same Act, and thus, the business owner has no obligation to newly install and operate the facilities under the proviso of Article 10 (1) of the same Act even if it falls under the proviso of Article 118 of the former Clean Air Conservation Act.

Therefore, insofar as it is evident that the Defendant Company obtained permission to change emission facilities in accordance with Article 10(4) of the above Air Quality Act with respect to the building facilities of this case or failed to submit the prescribed legal documents, it is difficult to view that the Defendant Company was exempted from the obligation to install or operate preventive facilities of this case, and thus, the defense counsel’s assertion that the facts charged of this case does not constitute a violation of Article 15(1)1 of the above Act is without merit.

(3) Next, with regard to whether the violation of this case constitutes a justifiable act, the following facts are considered: (a) as seen above, each of the provisions including Article 15(1)1 of the Clean Air Conservation Act, which imposes on the business operator with respect to emission and preventive facilities, ultimately regulates the quantity of air pollutants emitted from emission facilities below the permissible emission levels; (b) the defendant company knew that the building facilities of this case were operated as appropriate facilities even if they were operated without separate preventive facilities; (c) the quantity of pollutants emitted from the construction of the building of this case does not considerably exceed the permissible emission levels stipulated in Article 10(4) of the above Act, and it is obvious that the duty to install preventive facilities would have been exempted if the permission for the installation of emission facilities was obtained in accordance with the procedure stipulated in Article 10(4) of the above Act; and (d) the protection of the legal interests and interests of the above Act as well as the extent of substantial infringement of legal interests arising from the above violation. Accordingly, the violation of the Clean Air Conservation Act does not constitute an unlawful act.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without a need to determine the remaining grounds for appeal, and the following judgment is rendered after pleading.

The summary of the facts charged in this case is the same as the corresponding part of the above 1. B.3, and as seen in the above 3.B.3-3, this does not constitute a justifiable act, and thus, the defendants are acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judges Seo-pypy (Presiding Judge)