[1] The subject of determination as to whether “the head of a local government has a duty to manage and execute specific state delegated affairs or City/Do delegated affairs in accordance with the statutory provisions” among the purpose of the order to perform duties and the objection suit system against such order, and the requirements for the order to perform duties (i.e., whether a statutory duty exists)

[2] Whether recyclable aggregate and circular soil should not be stored in excess of the permissible storage quantity pursuant to Article 13(2) of the Construction Waste Recycling Promotion Act as construction waste under Article 2 subparag. 1 of the same Act (affirmative)

[3] In a case where the interpretation of the exceptional provision is unclear, whether it can be extensively interpreted (negative) / In a case where a construction waste disposal business operator buried in a place other than a waste disposal facility without recycling materials as prescribed by the Act on the Promotion of Construction Wastes Recycling, whether it is subject to a disciplinary measure under Article 25(2)2 of the Construction Waste Recycling Promotion Act and a disposition order under Article 48 subparag. 1 of the Wastes Control Act (affirmative)

[1] The purport of an order to perform duties and an objection against such order is to ensure the legitimacy and effectiveness of performing duties through the Supreme Court’s judgment and to reasonably resolve disputes between the two agencies related to the management and execution of duties through the Supreme Court’s judgment, in order to ensure the effectiveness of performing duties, by allowing the head of the relevant local government to file a lawsuit of objection against the order to perform duties, and thereby ensuring the legitimacy and effectiveness of performing duties. Accordingly, the subject of determination as to whether the head of the relevant local government is obliged to manage and execute specific national delegated duties or City/Do delegated duties in accordance with the provisions of statutes, based on the language and text of the order to perform duties, whether the head of the relevant local government exists, and whether the head of the relevant local government does not have reasonable grounds for performing duties after the application of the relevant statutes, in principle, in order to ensure the effectiveness of performing duties.

[2] Article 13(2) of the Construction Waste Recycling Promotion Act (hereinafter “Construction Waste Promotion Act”) provides that a construction waste disposal business entity entrusted with the disposal of construction waste shall not store construction waste in excess of the permissible storage quantity. The scope of recyclable aggregates and circular sand constitutes construction waste under Article 2 subparag. 1 of the Construction Waste Promotion Act.

[3] Article 2 subparag. 14 of the Construction Waste Recycling Promotion Act (hereinafter “Construction Waste Promotion Act”) and Article 4 of the former Enforcement Decree of the Construction Waste Recycling Promotion Act (amended by Presidential Decree No. 28367, Oct. 17, 2017) restrict the recycling of recycled aggregates and circulars only for specific purposes. This constitutes an exception to Article 8(2) of the Wastes Control Act that prohibits in principle the act of reclaiming wastes in a place other than waste disposal facilities. Generally, the exceptional provisions should be strictly interpreted, and the exceptional provisions should not be extended and interpreted in principle if the interpretation of the exceptional provisions is unclear. Construction of the exceptional provisions should not be recycled as prescribed by the Construction Waste Management Act, and if a construction waste disposal business entity fails to recycle materials that are not necessary for the business activities of the relevant construction waste disposal place, and if it is buried at a place other than waste disposal facilities, it constitutes a violation of the criteria for the storage and disposal of construction waste under Article 13(1)2 of the Construction Waste Act and thus, it can be subject to sanctions under Article 16(16) of the Wastes Act (amended by Act).

[1] Article 170 of the Local Autonomy Act / [2] Articles 2 subparag. 1 and 13(2) of the Construction Waste Recycling Promotion Act / [3] Articles 2 subparag. 14 and 13(1) of the Construction Waste Recycling Promotion Act, Article 4 of the former Enforcement Decree of the Construction Waste Recycling Promotion Act (Amended by Presidential Decree No. 28367, Oct. 17, 2017); Article 8(2) of the Wastes Control Act; Article 48 subparag. 1 of the Wastes Control Act (Amended by Act No. 16614, Nov. 26, 2019)

[1] Supreme Court Decision 2009Du206 Decided June 27, 2013 (Gong2013Ha, 1355) / [3] Supreme Court Decision 2011Du2705 Decided June 24, 201 (Gong2011Ha, 1480) Supreme Court Decision 2019Du43474 Decided February 6, 2020

Cheongyang-do Cheongyang-do (Attorneys Choi Yoon-soo et al., Counsel for the defendant-appellant)

Do Governor of Chungcheongnam-do (Law Firm Nature, Attorneys Lee Young-young et al., Counsel for the plaintiff-appellant)

March 12, 2020

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The defendant's order to perform duties against the plaintiff on July 10, 2017 is revoked.

1. Details of the instant order to perform duties

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 and Eul evidence 8:

A. The Defendant delegated the affairs on the promotion of the recycling of construction waste to the Plaintiff pursuant to Article 2(1) [Attachment 1] of the Ordinance on the Delegation of Administrative Affairs in Chungcheongnam-do.

B. From the year 2013, the Defendant filed a civil petition related to construction waste disposal by the residents, etc. of Cheongyang-gun, ○○○○○○○, etc., on the construction waste interim disposal business chain, on the construction waste disposal business environment (hereinafter “public environment”), and formed and operated the “Special Committee for the △△△△△△△ to solve the problem of asbestos and wastes” from October 2014.

C. On July 10, 2017, the Defendant issued the instant order to perform the duties, stating that “The Defendant shall confirm whether the construction waste recycling promotion act was in violation of the Act on the Promotion of Construction Wastes in the Pedestrian Environment (in excess of permissible storage quantity, and storage of mountainous districts, farmland, and pool other than storage facilities), and take measures according to the result (such as guidance and inspection, suspension of business, and disposition of imposition of fines for negligence, etc.), and report the result thereof by September 6, 2017.”

2. Order to perform duties and the purport of the objection lawsuit system against such order;

The purport of the duty performance order and objection lawsuit system is to ensure the legitimacy and effectiveness of the duty performance order through the Supreme Court judgment and to reasonably resolve disputes between the two agencies related to the management and execution of duty performance order through the Supreme Court's judgment, and to ensure the legitimacy and effectiveness of the duty performance order by allowing the head of the relevant local government to file a lawsuit of objection against the order for the performance of duty performance, and to ensure the legitimacy and effectiveness of the duty performance order. Accordingly, the subject of determination of whether the head of the relevant local government is obliged to manage and execute specific state affairs or City/Do delegated affairs in accordance with the provisions of statutes, based on the language and text of the order for performance of duty performance, whether the head of the relevant local government has a duty to determine whether the duty exists in accordance with the relevant statutes, whether the head of the relevant local government has a duty to manage and execute specific affairs or City/Do delegated affairs, and whether the head of the relevant local government has a reasonable reason after the issuance of the order, in principle, in order to ensure the effectiveness of the duty performance order.

3. Whether the duty performance order of this case is unlawful

(a) Whether the civil environment has been stored in excess of the permissible storage quantity of construction waste;

(1) The plaintiff's assertion

The Plaintiff asserts that the duty performance order of this case on a different premise is unlawful since the recyclable soil and recycled aggregate does not constitute construction waste under the Construction Waste Recycling Promotion Act (hereinafter “Construction Waste Act”) and the Enforcement Decree of the same Act.

(2) Determination

Article 13(2) of the Construction Waste Act provides that a construction waste disposal business entity entrusted with the disposal of construction waste shall not store construction waste in excess of the permissible storage quantity. In full view of the following circumstances, the Plaintiff’s assertion on this part is without merit, as it constitutes recycled aggregates and recycled soil and construction waste pursuant to Article 2 subparag. 1 of the Construction Waste Act.

(A) While Article 2 subparag. 1 of the Construction Waste Act and Article 2 subparag. 16 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 28367, Oct. 17, 2017; hereinafter “Enforcement Decree”) provide that construction waste soil and rocks constitute construction waste, “natural soil, sand, gravel, etc. generated in the course of interim disposal of separated or selected soil, sand, gravel, or construction waste” are excluded from construction waste, there is no explicit provision that excludes recyclable aggregates and circular soil from construction waste.

(B) Rather, Article 13(1) of the Construction Waste Act, Article 9(2) of the Enforcement Decree of the same Act, and Article 5(2) [Attachment 1-2] subparag. 2(c) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Environment No. 717, Oct. 19, 2017; hereinafter “Enforcement Rule”) provide for a sign installed in storage facilities by a person who interim disposal of construction waste, and classifys construction waste into “entrusted construction waste”, “waste subject to recycling”, “waste subject to incineration”, and “waste subject to reclamation” into “construction waste,” and on the premise that construction waste falls under construction waste even if it is possible.

(C) Article 2 Subparag. 7 of the Construction Waste Act provides that “construction waste is created in compliance with the quality standards for recycled aggregates through physical or chemical disposal processes, etc.” Article 2 Subparag. 14 of the Construction Waste Act and Article 4(1)3 of the Enforcement Decree of the Construction Waste Act provides that “construction waste soil and rocks are disposed of in compliance with the provisions of Article 13(1) of the Construction Waste Act.” The same applies even if the recycled aggregates and circular soil are aware that the recycled aggregates are the construction waste itself, and the same applies even if they have undergone physical or chemical disposal, etc. for recycling.

(D) Article 2 Subparag. 7, 8, 14, 35, and 38 of the Construction Waste Act, Article 3-2, 4, and 9(1)7 of the Enforcement Decree of the Construction Waste Act, Article 5(2) [Attachment 1-2] of the Enforcement Rule, and Article 5(2) [Attachment 1-2] of the Standards for Quality of Recycled Aggregate (Ministry of Land, Transport and Maritime Affairs Notice 2009-772) of the Enforcement Rule of the Construction Waste Act restrict the use of recycled aggregates only for specific purposes. In the case of recycled aggregate, the quality standards of recycled aggregate are separately prescribed for each purpose so as not to cause environmental pollution through recycling. Comprehensively considering the above provisions, even if recycled aggregate falls under recyclable construction waste, such as recycled aggregate and circular soil, it is necessary to manage it as construction waste until it is used for designated purposes.

(b) Whether the act of restoring the mountainous district by using the circular earth and sand is illegal;

(1) The plaintiff's assertion

The plaintiff asserts that the duty performance order of this case is unlawful on a different premise, since the state-owned environment restores the mountainous district by using circular earth and sand and reclaims reclaims does not fall under the "storage" stipulated in the Construction Waste Act.

(2) Determination

Article 2 subparag. 14 of the Construction Wastes Act and Article 4 of the Enforcement Decree thereof restrict the recycling of recycled aggregates and circular soil only for a certain purpose. This constitutes an exception to Article 8(2) of the Wastes Control Act that prohibits in principle the act of reclaiming wastes in a place other than a waste disposal facility. Generally, an exceptional provision shall be strictly interpreted, and where the interpretation of the exceptional provision is unclear, it shall be returned in principle, and where the exceptional provision is not clear, it shall not be extensively interpreted (see, e.g., Supreme Court Decision 2011Du2705, Jun. 24, 201). A construction waste disposal business entity shall not recycle any substance that is not necessary for its business activities as prescribed by the Construction Waste Management Act and shall not be recycled in accordance with the provisions of the Construction Waste Management Act and shall be subject to sanctions under Article 25(1)2 of the Construction Waste Management Act as it constitutes a violation of the standards for storage and disposal of construction waste under Article 13(1)2 of the same Act, and may also be subject to a disposition under Article 25(264)16(4)4)4) of the Wastes Act.

In addition, since the duty performance order of this case appears to have been in possession of construction waste in the mountainous district, farmland, etc. which is not the construction waste storage facilities, it is merely that the order is confirmed and necessary measures are withdrawn, and it is difficult to view that the act of restoring the mountainous district using circular soil constitutes the storage of construction waste, and therefore, this part of the plaintiff's assertion is without merit.

C. Determination on the remainder of the Plaintiff’s assertion

(1) The Plaintiff asserts that, with respect to the act that the public environment used circular soil to recover a mountainous district, the Plaintiff approved the plan for restoring a mountainous district submitted by the public environment pursuant to Article 40(1) of the Management of Mountainous Districts Act, and thus, the public environment cannot take corrective measures against the act that the public environment used to recover a mountainous district to recover a mountainous district pursuant to the good faith principle. However, the Plaintiff’s corrective measures cannot be deemed as going against the good faith principle to take corrective measures to correct the plan by walking the circular soil used to recover a mountainous district to the public environment and using a high quality soil.

(2) The Plaintiff asserts that it cannot be deemed as a violation of Article 13(1) of the Construction Waste Act, inasmuch as the environment of the public and private sectors was subject to a disposition by the prosecution regarding the act of reclaiming the pool by using circulars and reclaiming it. However, the prosecution’s non-prosecution disposition is related to the violation of the Wastes Control Act, and thus is not related to the application of the Construction Waste Act. In addition, the Plaintiff’s reclamation of the circular sand in the workplace was made for the construction of a site to carry out a business, such as the construction of facilities, within the site for which the construction waste disposal business was permitted, and this constitutes a “authorized construction work” pursuant to Article 4(1)1(b) or 3 of the Enforcement Decree, and there is no evidence to acknowledge it.

(3) The Plaintiff asserts to the effect that, upon the Defendant’s request, the Defendant accused the public interest environment to the prosecution, and that, from September 2013 to October 2017, a fact-finding survey was conducted as to whether the construction waste act, etc. was violated and that the business suspension and the imposition of administrative fines were not clearly negligent in performing the legal obligations. However, there is no evidence to acknowledge that the measures alleged by the Plaintiff were taken in relation to the excess of permissible storage quantity and the violation of the construction waste storage method.

4. Conclusion

Therefore, the Plaintiff’s claim of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Seon-soo (Presiding Justice)