Whether Article 11 (1) 1 of the former Enforcement Decree of the Clean Air Conservation Act that provides that "discharge facilities generating specified hazardous air pollutants" shall be subject to permission for installation, and whether Article 71 (1) 19 [Attachment Table 20] subparagraph 1 (i) (i) [Attachment Table 19] subparagraph 2 (i) (i) of the Enforcement Decree of the National Land Planning and Utilization Act that prohibits the construction of facilities emitting specified hazardous air pollutants in planned control areas are contrary to the excessive prohibition principle under Article 37 (2) of the Constitution (negative)

Article 37(2) of the Constitution of the Republic of Korea; Articles 1, 2 subparag. 9, 23(1), and 38 of the former Clean Air Conservation Act (Amended by Act No. 16266, Jan. 15, 2019); Article 11(1)1 of the former Enforcement Decree of the Clean Air Conservation Act (Amended by Presidential Decree No. 26705, Dec. 10, 2015); Articles 1, 36(1)2(c) and 76(1) of the National Land Planning and Utilization Act; Article 71(1)9 [Attachment Table 20] of the former Enforcement Decree of the National Land Planning and Utilization Act (Amended by Presidential Decree No. 26705, Dec. 10, 2015)

Plaintiff 1 and 11 others (LLC, Attorneys Park Poe-young et al., Counsel for the plaintiff-appellant)

Kimpo-si (Government Law Firm Corporation, Attorneys Choi financial et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2017Nu56355 decided January 31, 2018

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

The grounds of appeal are examined.

1. Whether the provision on the grounds of disposition is unconstitutional (Ground of appeal No. 1)

A. Details of the relevant statutes

Article 23(1) of the former Clean Air Conservation Act (amended by Act No. 1626, Jan. 15, 2019; hereinafter the same) provides that “Any person who intends to install emission facilities shall obtain permission from, or report to, an administrative agency, as prescribed by Presidential Decree, as prescribed by Presidential Decree.” Article 11(1)1 of the former Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 26705, Dec. 10, 2015; hereinafter the same) provides that “discharge facilities generating specified hazardous substances” (hereinafter “instant provisions of the Enforcement Decree of the Clean Air Conservation Act”).

Article 38 of the former Clean Air Conservation Act provides, “Administrative agencies shall order a person who installs or uses emission facilities without obtaining permission or filing a report to suspend the use of such emission facilities.” However, the proviso states, “Where it is deemed that even if the emission facilities are improved or preventive facilities are installed or improved, the degree of pollutants emitted from the emission facilities is unlikely to lower than the permissible emission levels under Article 16, or where the place of installation is prohibited from the installation of emission facilities under other Acts, the administrative agencies must order the closure of the emission facilities.”

Meanwhile, Article 76 (1) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “the matters concerning the restriction on the use, type, size, etc. of buildings and other facilities in special-purpose areas shall be prescribed by Presidential Decree.” Article 76 (1) of the Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 26705, Dec. 10, 2015; hereinafter “former Enforcement Decree of the National Land Planning and Utilization Act”) provides that “Article 71 (1) 19, subparagraph 1 (i) of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment Table 1] subparagraph 2 (i) through (iv) of the Enforcement Decree of the Building Act among factories referred to in subparagraph 17 of the same Article [Attachment Table 19] of the Enforcement Decree of the National Land Planning and Utilization Act and Article 71 (1) 1 (i) of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment 19] of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment 1]

B. Whether the enforcement decree of the instant case is unconstitutional

According to Article 37(2) of the Enforcement Decree of the instant case, in order to install a specified hazardous substance emission facility, permission is required to obtain permission from an administrative agency. Since installation of a facility emitting specified hazardous air pollutants is prohibited in a planned control area, permission is prohibited. Thus, the freedom of occupation of a person who intends to install and operate a factory facility emitting specified hazardous air pollutants, and the property rights of a person who owns land or a building in a planned control area may be restricted. However, the instant Enforcement Decree provision cannot be deemed to violate the principle of excessive prohibition under Article 3

1) First, we examine the provisions of the Enforcement Decree of the Clean Air Conservation Act.

The purpose of obtaining permission from an administrative agency for the installation of emission facilities of specified air pollutants is to ensure that all citizens can live in a healthy and pleasant environment by preventing danger and injury to public health or the environment due to air pollution and by managing and preserving the atmospheric environment in an appropriate and sustainable manner, and therefore the legitimacy of the purpose is recognized, and the permission system for the installation of emission facilities is a means suitable for achieving the above purpose.

In addition, the term “specified air pollutants” is a substance acknowledged to require the control of air emission because it may directly or indirectly harm human health or the growth of animals and plants through long-term intake or exposure (Article 2 subparag. 9 of the former Clean Air Conservation Act). Since the enforcement decree of the instant Clean Air Conservation Act only prescribes that the installation of specified air pollutants should not be absolutely prohibited, the installation of emission facilities of specified air pollutants should be absolutely prohibited, and thus, it satisfies the minimum degree of damage as it does not infringe on profits and satisfies the balance of legal interests as it does not exceed the above public interest.

2) Next, we examine the enforcement decree of the National Land Planning and Utilization Act.

With respect to the right to land property due to the sociality and public nature of the land, strong restrictions and obligations may be imposed compared to other property rights, and with respect to the matters concerning the use, development and preservation of the land, a broad legislative formation right is granted to the legislators (see Constitutional Court en banc Order 2016Hun-Ma18, Sept. 28, 2017).

In order to promote public welfare and to improve the quality of life for the people, it is necessary to establish and execute a plan for utilization, development and preservation of the national land (Article 1 of the National Land Planning Act). Thus, prohibiting installation of specified hazardous air pollutants emission facilities for the purpose of planned, systematic development and management of planned control areas that are anticipated to be integrated into an urban area or that require limited utilization and development taking into account the natural environment (Article 36(1)2(c) of the National Land Planning Act) is legitimate and appropriate.

In addition, the Enforcement Decree of the National Land Planning Act prohibits installation of specified air pollutants only in a planned control area, but does not prohibit all areas. A person who intends to install and operate a factory facility emitting specified hazardous air pollutants may obtain permission from an administrative agency in an area other than a planned control area. A planned control area does not extensively restrict the use of a building and the type of business, but limits only the use of a building or the conduct of business for a specific purpose, i.e., “discharge facilities of specified hazardous air pollutants”. As such, the site or building owner is subject to partial restriction of private utility within the scope of “discharge facilities of specified hazardous air pollutants” among the functions of the land or building. In this regard, the Enforcement Decree of the National Land Planning Act satisfies the minimum degree of damage, and the degree of restriction due to the prohibition of installation of emission facilities of specified

An emission facility of specified hazardous air pollutants installed without permission in a planned control area is “where the installation is prohibited from installation of emission facilities in accordance with other Acts” and is subject to an order of closure pursuant to the proviso to Article 38 of the former Clean Air Conservation Act. However, the disadvantage is the result of an act of violating the obligation to install and operate an emission facility of specified hazardous air pollutants without permission in a place where the installation of an emission facility of specified hazardous air pollutants is prohibited, and it is not the result of infringement of legal interests directly arising

3) According to the Enforcement Decree of the Clean Air Conservation Act (amended by Presidential Decree No. 26705, Dec. 10, 2015), the provisions of the Enforcement Decree of the Clean Air Conservation Act are amended to only the installation of emission facilities that are generated in excess of the standards prescribed by Ordinance of the Ministry of Environment. The provisions of the Enforcement Decree of the National Land Planning Act were amended to prohibit only the installation of facilities that are emitted in excess of the said standards in planned control areas. Accordingly, the implementation Decree of the National Land Planning Act was possible to install specified hazardous air pollutants in planned control areas. However, the amendment of the Enforcement Decree seems to reasonably improve the regulations on the installation of emission facilities of specified hazardous air pollutants due to the development of technology or the change of policies. It is difficult to view that the enactment of the Enforcement Decree voluntarily recognized the unconstitutionality of the Enforcement Decree of the

4) Meanwhile, Article 30 subparag. 19 [Attachment 19] subparag. 9(a) [Attachment 15] subparag. 12(a) [Attachment 15] subparag. 12(a) (hereinafter “instant ordinance clause”) of the former Ordinance of the National Land Planning and Utilization (amended by Ordinance No. 1241, Sept. 30, 2015) stipulating the same content as the Enforcement Decree of the National Land Planning and Utilization Act, cannot be deemed as a violation of the principle of excessive prohibition for the same reason.

C. Nevertheless, the lower court determined that the provision of the Enforcement Decree of this case and the provision of the Ordinance of this case, which is the basis of the instant disposition, are unconstitutional in violation of the excessive prohibition principle. In so doing, the lower court erred by misapprehending the legal doctrine on the legislative formation right to regulate the atmospheric environment and restrict urban planning, the freedom of occupation under the Constitution, and the property right. However, as long as the lower court’s determination that the instant disposition was unlawful due to lack of proof as to the grounds for disposition, it cannot be deemed that the lower court erred by misapprehending the legal doctrine,

2. Whether grounds for disposition are recognized (Ground of appeal No. 2)

A. The lower court, based on the circumstances indicated in its reasoning, determined that it was difficult to trust the outcome of examining the emission of specified air pollutants in the instant facilities and there was insufficient proof as to the grounds for the instant disposition.

B. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof of the reason for disposition, thereby adversely affecting the conclusion of the judgment

3. 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 Noh Jeong-hee (Presiding Justice)