[1] The method of determining whether a provision on taxation or charge is unconstitutional due to lack of clarity

[2] The scope of application of the principle of non-sufficiency in the laws and regulations on taxes and charges

[3] In a case where Article 32 (2) of the former Sewerage Act was enforced at the time of commencement of the project and the ordinances of the local government delegated the provision on the amount borne by borne by borne persons prior to the completion of the project, whether applying the relevant ordinances to the relevant project violates the principle of prohibition of retroactive legislation (negative)

[4] Whether the "public sewerage necessary due to other acts" under Article 32 (2) of the former Sewerage Act includes the public sewerage which treated sewage to be generated by the pertinent project only after installing the public sewerage (affirmative)

[1] Even if the provisions of the Act stipulate the requirements and procedures for collecting taxes and charges, since the contents of the provisions may cause arbitrary interpretation and enforcement of the imposing authority if they are excessively abstract and unclear, the provisions of the Act or the orders and rules following the delegation shall be meaningful and clear. However, since the provisions of the Act have generality and abstractness, and thus the meaning of those provisions can be embodied and clear through the interpretation of the judge as a supplementary action of the law. Thus, if the meaning of the provisions concerning taxes and charges can clearly be clarified in light of the legislative purport, overall system and contents of the relevant Acts and subordinate statutes, it cannot be said that the provisions concerning taxes and charges lack clarity in such cases are unconstitutional.

[2] The principle of non-sufficiency in the statutes on taxes and charges means that the pertinent statutes cannot apply to the facts completed prior to the entry into force of the statutes, unless there are special circumstances, and it does not limit the application of the statutes to the elements that occurred thereafter.

[3] The amount borne by the burden under Article 32 (2) of the former Sewerage Act (amended by Act No. 8014 of Sep. 27, 2006) imposes all or part of the construction cost of the public sewerage required due to other construction works or other acts on the implementer of the other construction works or the other acts. The construction cost of the public sewerage is reasonable to impose on the basis of the amount of sewage generated due to the relevant project. The amount of sewage generated can be changed by the modification of the project plan until the completion of the project. Thus, the amount borne by the burden can be imposed until the completion of the project. Thus, if the local government enacted a municipal ordinance delegated with the provisions of Article 32 (2) of the former Sewerage Act as to the amount borne by the burden under Article 32 (5) of the same Act before the completion of the project, the application of the municipal ordinance to the relevant project does not violate the principle of prohibition of retroactive legislation.

[4] The "public sewerage required by other acts" under Article 32 (2) of the former Sewerage Act (amended by Act No. 8014 of Sep. 7, 2006) includes not only the public sewerage newly installed after the implementation of the project, but also the public sewerage which has already been installed before the implementation of the project and was not scheduled to treat sewage to be generated from the project, but also the public sewerage which has been treated by the project only after the installation.

[1] Article 59 of the Constitution / [2] Article 13 (2) of the Constitution of the Republic of Korea, Article 18 of the Framework Act on National Taxes / [3] Article 32 (see current Article 61) of the former Sewerage Act (amended by Act No. 8014 of September 27, 2006) and Article 13 of the Constitution / [4] Article 32 (2) (see current Article 61) of the former Sewerage Act (amended by Act No. 8014 of September 27, 2006)

[1] Supreme Court Decision 93Nu20726 delivered on February 25, 1994 (Gong1994Sang, 1133), Supreme Court Decision 2002Du6231 Delivered on November 14, 2003 / [2] Supreme Court Decision 2002Du6231 Delivered on November 14, 2003

○○ District Partitioning Association and four others (Law Firm Gyeong & Yang, et al., Counsel for the plaintiff-appellant)

Ulsan Metropolitan City Mayor (Law Firm International, Attorney Ha Man-young, Counsel for defendant-appellant)

Busan High Court Decision 2002Nu4631 delivered on January 28, 2005

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. As to the grounds of appeal Nos. 1, 2, 3, 5, and 6

Even if an Act provides for the requirements for imposing and collecting taxes or charges, since the contents of the provision may cause arbitrary interpretation and enforcement of the imposing authority if they are excessively abstract and unclear, the provisions of the Act or the orders and rules following the delegation shall be meaningful and clear. However, since the legal provisions have generality and abstractness, they can be embodied and clear through the interpretation as a judge's supplementary action. Thus, if the meaning of the provision concerning taxes or charges can clearly be clarified in light of the legislative purport, overall system, contents, etc. of the relevant Acts and subordinate statutes, it shall not be deemed unconstitutional because the provision concerning taxes or charges lacks clarity in such a case. The principle of non-sufficiency in the Acts and subordinate statutes concerning taxes or charges means that the relevant Acts and subordinate statutes cannot be applied to the requirements completed before the entry into force of the said Acts and subordinate statutes, and it shall not be limited to the application of the Acts and subordinate statutes to the requirements that occurred thereafter (see, e.g., Supreme Court Decisions 93Nu20726, Feb. 25, 1994; 201Du316316, Feb. 2014).

The burden-bearing amount under Article 32(2) of the Sewerage Act (wholly amended by Act No. 8014, Sept. 27, 2006; hereinafter “the Sewerage Act”) imposes all or part of the construction cost of the public sewerage required due to other construction works or other acts on the implementer of the relevant other construction works or the implementer of the other acts. The construction cost of the public sewerage is reasonable to impose on the basis of the amount of sewage generated from the relevant project. The amount of sewage generated can be changed by the modification of the project plan until the completion of the relevant project. Thus, the burden-bearing amount can be imposed until the completion of the relevant project. Thus, if the municipal ordinance of the local government, which was delegated with the provisions of Article 32(2) of the Sewerage Act, was enforced at the time of the commencement of the project, before the completion of the project, and the application of the municipal ordinance to the relevant project cannot be deemed to violate the principle of prohibition of retroactive legislation, and if it is clearly possible to understand the requirements for imposing the burden-bearing amount and its contents through the interpretation of the relevant provisions.

The lower court determined that the former Ordinance on the Use of Sewage of Ulsan City (amended by Ordinance No. 268 of Ulsan City, Mar. 29, 1997), which was enacted under Article 32(5) of the Sewerage Act, did not specifically stipulate the content of other acts subject to the imposition of charges, but the Enforcement Rule of the Act on the Use of Sewage of the Small and Medium Enterprise (amended by Ordinance No. 268 of Ulsan City) provides that the charges for the construction of sewage shall be imposed at the cost of the new urban development project (the new Ordinance No. 2500, Mar. 29, 1997) and the new Ordinance on the Use of Sewage of the Small and Medium Enterprise (the new Ordinance No. 250, Sept. 25, 201), which was enacted before May 195 and April 6, 1996, which included the scope of the charges and the detailed construction cost, the timing and collection procedure of the charges for the construction of the relevant urban development project (the new Ordinance on the Use of Sewage).

In light of the above legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of the principles of influence, clarity, or the imposition requirements of the burden borne by the person in charge, Article 32(2) and (5) of the Sewerage Act concerning the starting point of the exclusion period of imposition, and the interpretation of the Municipal Ordinance and the Enforcement Rule of the Municipal Ordinance, contrary to what is alleged in the grounds of appeal.

2. As to the fourth ground for appeal

The court below held that, in general in administrative legal relations, in order to apply the principle of trust protection to the acts of administrative agencies, the administrative agency should first issue an official opinion that is the subject of trust to individuals. The court below held that the defendant cannot be deemed to have given an official opinion that the defendant would not impose the burden on the plaintiffs only on the ground that there was no mentioning about the imposition of the burden on the plaintiffs at the time of authorization for the implementation of the project in this case. In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to

In addition, the court below held that the disposition of this case is not an unlawful act of deviation or abuse of discretionary power since the imposition of the charge by the charge by the plaintiff is much more likely than the private disadvantage suffered by the plaintiffs, considering the purport of the Sewerage Act, the necessity of raising funds to expand the sewage facilities, and the fact that at the time of the execution of the project of this case, the plaintiffs could have predicted that the charge by the burden can be imposed for the sewage treatment that would be caused by the project of this case. In light of the records, the above decision of the court below is just, and there is no error of law of deviation or abuse of discretionary power or violation of the reasoning, as alleged in the grounds of appeal.

3. As to the grounds of appeal Nos. 7 and 8

According to the records, the ground of appeal that there is no ground for imposing an amount borne by the Defendant on the construction of the final sewage treatment plant and the instant sewage culvert construction since the instant project area was designated as the drainage area of the instant sewage treatment plant, or that there is a procedural error in the imposition of an amount borne by the Defendant in the instant disposition for imposing an amount borne by the Defendant cannot be a legitimate ground of appeal against the lower judgment because it is obvious that the Plaintiffs asserted that the instant sewage treatment plant was created only before the final appeal was made. Further, even if Article 3 (1) of the instant Ordinance on the Use of Sewage which was amended before the alteration of the sewage treatment plant to the final sewage treatment plant within the instant project area, including the instant project area, was stipulated as the drainage area of the instant sewage treatment plant in Yangsi-si, including the instant project area, the said Ordinance provisions can not be deemed to include the amount borne by the Defendant in the instant disposition for imposing an amount borne by the Defendant into the final sewage treatment plant within the jurisdiction of the Ulsan Metropolitan City prior to the alteration to the final sewage treatment plant.

4. As to ground of appeal No. 9

Considering the purport of Article 32(2) of the Sewerage Act and Article 24(1) and (2)2 of the Ordinance on the Use of Sewerage, the relationship between Article 32(2) and (4) of the Sewerage Act, it is reasonable to see that the concept includes not only the public sewerage newly installed after the implementation of the relevant project, but also the public sewerage newly installed to treat sewage to be generated from other projects as stipulated in Article 32(2) of the Sewerage Act, in order to treat sewage to be generated from other projects, as well as the public sewerage newly installed after the implementation of the relevant project, and there was no plan to treat sewage to be generated from the relevant project until the installation of the plan, but also the public sewerage after the installation of the plan.

In the same purport, as long as the final sewage treatment plant is determined to be used for sewage treatment discharged from each district of a land readjustment project by the plaintiffs, it is reasonable to view the existing final sewage treatment terminal construction cost as the construction cost for the public sewerage system required by the plaintiffs due to the project of this case implemented by the plaintiffs. In addition, there is no error of misapprehending the legal principles as to the requirements for imposing the burden borne by the burden borne by the plaintiff under Article 32 (2) of the Sewerage Act

5. As to ground of appeal No. 10

Article 32(2) of the Sewerage Act provides that the construction work on which the burden-bearing amount may be imposed is the construction work on the public sewerage system necessary due to other construction works or other acts. Article 32(5) provides that the matters on the burden-bearing amount shall be delegated to the Municipal Ordinance of a local government. Article 24(2)2(b) and (4) of the Sewerage Act provides that the delegated matters shall be listed as other urban development projects, such as a land readjustment project, and all of the expenses for the public sewerage construction required due to other acts shall be borne by other actors, who are the project implementer, and the amount anticipated to be caused by such other acts shall be calculated by the "amount on the basic plan or working plan of the project in question". The above provision provides that the construction cost for the construction of the public sewerage system which is anticipated to be caused by the project shall be borne by the project implementer, who is another person who created the cause, and that the amount expected to be caused by other acts, including the use of land created by the project, shall not be included in the scale or scale of the construction plan.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no violation of the principle of no taxation without law or the misapprehension of the legal principle on the calculation of the amount borne by the burden

6. As to other grounds of appeal

(1) Whether the instant disposition goes against the binding force of the final and conclusive judgment

The binding force of a final and conclusive judgment revoking a disposition imposing charges is to prevent the same disposition for the same reason as that of an individual illegal cause. Thus, a new disposition imposing charges based on a separate reason for which a final and conclusive judgment is rendered is not in conflict with the binding force of a final and conclusive judgment, inasmuch as the court only prohibits the same disposition for the same reason as that of an individual illegal cause.

In light of the adopted evidence, the lower court: (a) on December 27, 1995, the Defendant: (b) obtained approval for the alteration of the basic plan for the sewerage maintenance of the kinds of sewage facilities on which the Plaintiffs implement a land readjustment project; and (c) filed a lawsuit seeking revocation of the imposition of the burden borne by the Plaintiffs to the extent that the Plaintiff, other than the land rearrangement cooperative for the Plaintiff, was borne by the burden; (d) the said Plaintiffs were partly favorable in the said lawsuit; and (e) appealed to Busan High Court 99Nu3904, which received the recommendation from the Board of Audit and Inspection; and (e) on the lawsuit, the Defendant waived sewage treatment facilities within the area where the said land rearrangement project was implemented by the Plaintiff; and (e) concluded that the new disposition of imposition and disposal of the amount borne by the Defendant, other than the original disposal facilities, should not be deemed to be a new disposition of imposition and disposal of the amount borne by the Plaintiff on the ground that the new disposition of imposition and disposal of the amount borne by the Defendant, which became final and conclusive within the final judgment.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

(2) Whether Article 32(5) of the Sewerage Act is unconstitutional or not

Article 32(2) and (5) of the Sewerage Act provides that local governments, which are public sewerage management authorities, shall have the authority to impose charges related to the reconstruction of public sewerage or construction works, and the local governments shall have the authority to enact separate ordinances with respect to the method or procedure thereof. Thus, the instant Ordinance on the Use of Sewerage shall be enacted based on the right to self-governing legislation under the Constitution, which is specifically delegated under Article 32(2) and (5) of the Sewerage Act. Article 32(2) of the Sewerage Act provides an alternative lecture on matters of delegation (the imposition of charges), persons subject to charges (the implementer or other actors of other construction works, which require construction works of public sewerage), and the scope of charges (the whole or part of construction costs) and the scope of the charges (the whole or part of construction costs). Thus, it shall be delegated to the local governments with the matters necessary for the contents, methods, timing, collection procedures, etc. of the remainder of construction costs pursuant to the ordinances of the local governments (see Constitutional Court Decision 2004Hun-Ba63, Feb. 6, 2004).

The judgment of the court below to the same purport is just, and it is not erroneous in the misapprehension of legal principles as alleged in the grounds of appeal.

7. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)