[1] Whether the act of increasing the number of incinerations by simply increasing the operating hours of incineration facilities without an extension of incineration facilities is included in the “change of disposal capacity” under Article 29(1)2(e) of the former Enforcement Rule of the Wastes Control Act as a modified matter (negative)

[2] In a case where Gap corporation, which is an interim waste disposal company, installed or expanded incineration facilities differently from the permitted contents, and received a penalty surcharge from the Han River basin basin environmental office on the ground that it excessive incineration of wastes in excess of 30/100 of the permitted disposal capacity, the case holding that the Han River basin basin environmental office's assertion that "the Han River basin basin environmental office's ground that "the Han River basin environmental office's excessive incineration of incineration facilities by extending the incineration facilities without obtaining permission for modification constitutes a violation of Article 29 (1) 2 (e) of the former Enforcement Rule of the Wastes Control Act, etc." was asserted that "the Han River basin environmental office's ground that it constitutes an additional or modification of the permitted disposal reason," the case holding that the Han River basin basin environmental office's above assertion is not a new ground for disposal in a lawsuit, but rather

[1] Examining the text and contents of Article 25(1), (2), (3), and (11), Article 27(2)10, and Article 65 subparag. 14 of the Wastes Control Act, and Article 29(1)2(e) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 796, Dec. 31, 2018; hereinafter “former Enforcement Rule”) in light of the relevant legal principles, “change of disposal capacity” under Article 29(1)2(e) of the former Enforcement Rule means the extension of an incineration facility physically in cases of an interim waste disposal business (specialized incineration), and it does not include an act of increasing incineration capacity by simply increasing the operating hours of incineration facilities without the extension of incineration facilities.

[2] The case holding that Gap corporation, which is an interim waste disposal company, received a penalty surcharge from the Han River Environmental Office on the ground that it had been imposed on the ground that it had been allowed to extend incineration facilities without physical permission or increase the number of hours of operation without physical extension, etc. unlike the permitted contents of the incineration facilities. Gap corporation filed a lawsuit to cancel this disposition and claimed that it constitutes deviation and abuse of discretionary power, but it did not constitute a violation of Article 25 (11) of the Wastes Control Act and Article 29 (1) 2 (e) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of Ministry of Environment No. 796 of Dec. 31, 2018), it did not constitute a violation of the above Acts and subordinate statutes, and that it did not constitute a violation of the above Acts and subordinate statutes, and that Gap corporation did not specifically claim that "the above disposal facilities were excessively incinerated without physical extension of incineration facilities without permission," and that it did not constitute a violation of the above Acts and subordinate statutes since Gap corporation did not specifically claim that "the above disposal facilities were excessively discharged and altered."

[1] Article 25(1), (2), (3), and (11), Article 27(2)10, and Article 65 subparag. 14 of the Wastes Control Act; Article 29(1)2(e) of the former Enforcement Rule of the Wastes Control Act (Amended by Ordinance of the Ministry of Environment No. 796, Dec. 31, 2018); / [2] Article 25(1), (2), (3), and (11), Article 27(2)10, and Article 65 subparag. 14 of the Wastes Control Act; Article 29(1)2(e) of the former Enforcement Rule of the Wastes Control Act (Amended by Ordinance of the Ministry of Environment No. 796, Dec. 31, 2018); Article 1 of the Administrative Litigation Act / [General Administrative Litigation]

[Defendant-Appellant] Korea National Oil Industry Co., Ltd. (Attorney Park Jong-he et al., Counsel for defendant-appellant)

Han River (Attorney true-at-law in Do Environmental Office)

Seoul High Court Decision 2018Nu75964 decided July 11, 2019

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) On March 23, 200, the Plaintiff obtained a license for interim disposal business of designated wastes from the Defendant, and is an interim disposal business of wastes, other than designated wastes, for which a license for interim disposal business of wastes was granted from the chemical market on December 8, 2003.

(2) The Central Environmental Offense Investigation Group of the Ministry of Environment investigated the current status of the Plaintiff’s business operation, and discovered excessive incineration of wastes exceeding 30/100 of the permitted disposal capacity from August 1, 2015 to June 30, 2017 (hereinafter “instant violation”), and notified the Defendant of the instant indictment to the Seoul Eastern District Prosecutor’s Office, including the violation of the Wastes Control Act, even though the Plaintiff obtained permission on the number of 4.6t per hour per hour per November 2016, and the permission on the number of 2t per hour per initial time per 2t of incineration facilities was granted.

(3) On December 1, 2017, the Defendant, in violation of Article 25(11) of the Wastes Control Act, submitted a prior notice to the Plaintiff on the ground that the instant violation constitutes “a case where permitted matters are modified without obtaining permission for alteration,” and that it is scheduled to suspend business operations for six months pursuant to Article 27(2) of the same Act, and thus, the Defendant was required to submit an opinion on the instant violation. Around that time, the Plaintiff submitted a written opinion to the effect that, considering the instant violation’s difficult circumstances, or the Plaintiff’s endeavoring to obtain permission for extension, such as conducting environmental impact assessment, etc., it is excessive to suspend business operations for six months, and thus, the instant disposition for business suspension

(4) On February 22, 2018, the Defendant issued a disposition imposing a penalty surcharge of KRW 100 million on the Plaintiff on the ground of the instant violation (hereinafter “instant disposition”). The written disposition contains the following: (a) “violation of Wastes Control Act (overfluence of wastes)”; and (b) “Where any permitted matter is modified without obtaining permission for modification” [Article 29(1)2(e) of the Enforcement Rule of the Wastes Control Act]: Article 25(11) of the Wastes Control Act; (c) “violation period: From August 1, 2015 to June 30, 2017”; and (d) “Article 27(2) of the Wastes Control Act”.

(5) On May 23, 2018, the Plaintiff filed the instant lawsuit and asserted that the instant disposition was excessive, and thus constitutes deviation from and abuse of discretionary power. After that, in the trial of similar related cases, the Plaintiff asserted that “in the event of excessive incineration without any physical extension of incineration facilities, it constitutes a violation of Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of Ministry of Environment No. 796, Dec. 31, 2018; hereinafter “former Enforcement Rule”), the Plaintiff also asserted that the instant lawsuit constitutes a violation of Article 25(11) of the Wastes Control Act, Article 29(1)2(e) of the former Enforcement Rule, and Article 25(1) of the former Enforcement Rule, Article 29(1)2(e) of the former Enforcement Rule, and thus, the Plaintiff’s assertion that the instant disposition constitutes a violation of Article 25(1)2(e) of the former Enforcement Rule without permission.”

B. The key issue of the instant case is (1) whether a waste disposal business entity’s excessive incineration of wastes exceeding 30/10 of the “daily treatment capacity” designated as the conditions of permission by simply increasing the number of daily operation hours without any physical extension of incineration facilities constitutes a violation of Article 25(11) of the Wastes Control Act, Article 29(1)2(e) of the former Enforcement Rule, Article 29(2) of the former Enforcement Rule, and (2) of the former Enforcement Rule, as the grounds for the initial disposal offered by the Defendant while rendering the instant disposition, and whether the Defendant’s assertion that “the Plaintiff is an unauthorized extension of incineration facilities without permission, and thus, constitutes a violation of Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule,” in a lawsuit by the Defendant, asserting that “the Plaintiff constitutes an addition or modification of the grounds for disposition not permitted in accordance with the legal principles

2. Justifiable interpretation of Article 29(1)2(e) of the former Enforcement Rule (Ground of appeal Nos. 1 and 2)

A. Article 25 of the Wastes Control Act provides that a person who intends to operate a waste treatment business shall obtain permission with facilities, equipment, and technical capacity in accordance with the standards prescribed by Ordinance of the Ministry of Environment within a certain period after submitting a waste treatment business plan and receiving notification of conformity (paragraphs 1 and 2) (Paragraph 3), and that a waste treatment business operator who has obtained permission shall obtain permission for modification in order to modify important matters prescribed by Ordinance of the Ministry of Environment (Paragraph 11). Article 29(1)2(e) of the former Enforcement Rule upon delegation from the authority provides that “Any person who intends to operate a waste treatment business shall obtain permission for modification in accordance with Article 25(11) of the former Enforcement Rule of the Wastes Control Act (referring to the total amount changed after obtaining the permission or permission for modification).”

Meanwhile, Article 25(11) of the Wastes Control Act provides that if matters subject to permission are modified without obtaining permission for modification under Article 25(11), the Wastes Control Act may revoke the permission or order the suspension of all or part of the business for a specified period not exceeding six months (Article 27(2)10), and shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won (Article 65 Subparag. 14).

B. Examining the language, content, structure, etc. of the Wastes Control Decree in light of the relevant legal doctrine, “change of the disposal capacity” under Article 29(1)2(e) of the former Enforcement Rule refers to the case of interim disposal of wastes (only in the case of interim disposal of wastes) where the facilities are physically expanded, and it is reasonable to view that the act of increasing the disposal capacity by simply increasing the operating hours of incineration facilities without the extension of incineration facilities is not included therein. The specific reasons are as follows.

(1) The provision on the basis of an infringed administrative disposition shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted to the disadvantage of the other party to the disposition. The same shall apply where the requirements prescribed in the provision also fall under the elements of punishment. However, unless the interpretation does not deviate from the ordinary meaning of the language and text, the teleological interpretation taking into account the legislative intent, purpose, etc. is not excluded (see, e.g., Supreme Court Decision 2011Du2337, Feb. 23, 2012).

(2) The term “treatment” under the Wastes Control Act is a concept that covers the collection, transportation, storage, and recycling of wastes (Article 2 Subparag. 5-3); and the term “disposal” means both interim disposal, such as incineration, neutralization, crushing, and isolation, and terminal disposal, such as reclamation or discharge into the sea area (Article 2 Subparag. 6). The Wastes Control Act clearly separates the “standards for Facilities” (Article 25(2)3 and (3) and the “standards for Acts” (Article 25(9)) to be observed by a waste disposal business entity in the course of operating after obtaining a license.

According to the definition of the Korean language advance, “capacity” means a quantity that can enter a household or a misunderstanding. Accordingly, a term “capacity” means a physical and objective nature or condition, such as the size, usage, and capacity of a thing or facility.

According to Article 28 of the former Enforcement Rule, an interim waste disposal business (specialized to incineration) shall be equipped with incineration facilities of “not less than 2t-hour disposal capacity per hour” (paragraph 6 [Attachment Table 7] 2(a). A waste disposal business entity shall submit a waste disposal business plan (attached Form 17] along with “plan for disposal of wastes subject to disposal” which includes a plan for installing facilities, equipment, and technical capacity, etc. [Attachment Form 17]; and its [Attachment 17] shall include “facilities and equipment installation” and “standards” as “facilities and equipment” and the bottom of the former Enforcement Decree of the Wastes Control Act [Attachment 1] [Attachment 7] stating that the applicant shall have the capacity to install waste disposal facilities and transportation equipment under attached Table 3 [Attachment 7] stating that the applicant shall have the capacity to install waste disposal facilities and equipment per hour per disposal facility and the average operating time per day, and that he/she shall obtain a permit for installation of the attached Form 8] and [Attachment 1] stating that he/she shall have the capacity to prepare the attached Form [Attachment 1] and [Attachment 7];

As such, comprehensively taking account of the regulatory system that clearly divides the facility standards and the action standards, the prior meaning of the terms "capacity", the provisions of Article 28 of the former Enforcement Rule, and the matters stated in the attached Form thereof, the “change of disposal capacity” under Article 29(1)2(e) of the former Enforcement Rule shall be deemed to mean the physical extension of waste disposal facilities.

(3) Meanwhile, Article 25(7) of the Wastes Control Act provides that when the permitting authority grants a license for a waste disposal business pursuant to Article 25(3), it may attach necessary conditions for surrounding environmental protection and efficient management of waste disposal business, etc. As seen earlier, the former Enforcement Rule (attached Form 20) separately states “facilities and equipment” and “requirements for Permission”. Based on the foregoing, the permitting authority determines the maximum capacity (i.e., “one-day maximum treatment capacity” in administrative practice) in which disposal of the relevant treatment facility can be carried out for a certain period of 24 hours from the relevant treatment facility to the actual disposal of the waste disposal business (i.e., “one-day treatment capacity”).

According to the Wastes Control Act, “one-day treatment capacity” refers to “standards for acts to be observed by a waste disposal business entity in the course of operating the relevant disposal facility,” and if a waste disposal business entity violates such standards, he/she may order the revocation of permission or the suspension of business for a period not exceeding six months pursuant to separate grounds in the Wastes Control Act (Article 27(2)6), and shall be punished by imprisonment with labor for not more than two years, or by a fine not exceeding twenty million won (Article 6(7)

Article 83(1) [Attachment 21] [Attachment 21] [Attachment 21] of the former Enforcement Rule pursuant to delegation of Article 60 of the Wastes Control Act, unless there exist any grounds for increase or decrease, Article 83(1) [Attachment 21] 2(c) of the former Enforcement Rule provides that where a waste disposal business operator amends permitted matters without obtaining permission for modification under Article 25(11) of the Wastes Control Act, he/she shall be subject to six months of business suspension when he/she violates Article 29(1)2(e) of the former Enforcement Rule, and shall be subject to one month of business suspension when he/she violates the conditions of permission under Article 25(7) of the Wastes Control

As such, the Wastes Control Act clearly separates the cases of violation of the obligation to obtain permission for change and the cases of violation of the conditions of permission, and stipulates that the same shall be treated differently depending on its illegality.

C. In the same purport, the lower court determined that the “waste disposal capacity” under Article 29(1)2(e) of the former Enforcement Rule refers to “hour disposal capacity” of waste disposal facilities, and that the case where waste is incinerated by inserting waste above the permitted treatment capacity without any specification, structural and functional change of waste disposal facilities, it cannot be included as violating the duty to obtain permission for change under Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule. In so doing, the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on “change of disposal capacity,” which is a matter of modified permission under the Waste Management Act

3. Whether it constitutes an addition or modification of the grounds for non-permission (ground of appeal No. 3)

A. (1) In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency is not allowed to assert as a ground for disposition on the grounds of a separate fact, not the grounds for the original disposition, but rather the grounds for the original disposition. However, other grounds may be added or modified to the extent that it is deemed identical to the grounds for the original disposition, and the existence of the basic facts in this context is determined depending on whether the social factual relations, which are the basis for the disposition, are identical in the basic point of view by citing the specific facts before the legal evaluation of the grounds (see Supreme Court Decision 200Du8684, Sept. 28, 2001,

(2) In principle, in cases where an administrative agency takes a disposition through a document, the determination of which disposition is made according to the language and text of the written disposition shall be based on; however, in extenuating circumstances, such as where the administrative agency is unclear on the basis of the language and text of the written disposition, the content of the disposition may be interpreted differently from the language and text of the written disposition, taking into account other circumstances, such as the details of the disposition, the genuine intent of the disposition agency, and the attitude of the other party before and after the disposition (see, e.g., Supreme Court Decisions 2009Du18035, Feb. 11, 2010; 2012Du20571, Jul.

(3) Article 23(1) of the Administrative Procedures Act provides that, when an administrative agency takes a disposition, the administrative agency shall present the basis and reasons for the disposition to the parties. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the procedure for remedying their rights. Therefore, in full view of the contents stated in the disposition, related statutes, and the overall process up to the disposition, etc., where it can be sufficiently known whether the disposition was taken by the parties for any reason, and where it is deemed that there was no particular hindrance to the party’s appeal and moving into the procedure for remedying their rights, it cannot be deemed that the disposition was unlawful in violation of the duty to present the reason, even if the grounds and reasons for the disposition are not specified in the disposition (see Supreme Court Decision 2007Du20348, Dec. 10, 2

B. Examining the facts in light of the aforementioned legal principles, the following determination is possible.

(1) While rendering the instant disposition, the Defendant merely stated the “over-the-counter incineration” in the instant disposition and did not specify what method it did. However, “over-the-counter incineration” is not a legal term clearly defined under the Wastes Control Act, but merely an expression used by the Defendant to explain the consequences of the instant offense. Therefore, if the terms are somewhat unclear, it should be deemed that the Defendant is more concrete to the extent that it does not interfere with the Plaintiff’s exercise of right to defense, which is the other party to the disposition.

(2) Rather, comprehensively taking account of the investigation results of the Central Environmental Offense Investigation Group of the Ministry of Environment, the details of the Defendant’s prior notice, and the details of the Plaintiff’s written opinion as to the notification, etc., the Defendant may be deemed to have issued the instant disposition by taking the fact that the Plaintiff violated Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule by excessively discharging wastes exceeding 30/10 of the disposal capacity permitted from August 1, 2015 to June 30, 2017 after the Plaintiff installed or expanded the incineration facility differently from the content of the permission granted by the Plaintiff. Moreover, even if the Plaintiff did not specifically assert the Defendant’s defense right to defense, the Plaintiff did not specifically assert the instant disposition.

(3) In response to the Plaintiff’s assertion in the lawsuit, the Defendant’s assertion that “the Plaintiff is an excessive incineration by extending the incineration facility without permission for modification, and thus, constitutes a violation of Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule shall be deemed to constitute a violation of Article 25(11) of the Wastes Control Act and Article 29(1)2(e) of the former Enforcement Rule” is not an additional assertion in the lawsuit, but rather an additional assertion of the grounds for new disposition

C. Nevertheless, the lower court immediately rejected the Defendant’s aforementioned assertion on the grounds that it is deemed that it constitutes an addition or modification of the grounds for a disposition that is not permitted on the grounds that the identity of the original grounds for the disposition of this case is not recognized, and did not examine and determine the propriety of the original grounds for disposition. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of an administrative disposition, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

4. 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 on the bench.

Justices Ahn Jae-chul (Presiding Justice)