Articles 15 and 37(2) of the Constitution of the Republic of Korea; Article 13(1) of the Wastes Control Act; Article 7(1)3(a) of the Enforcement Decree of the Wastes Control Act; Article 9(1) and (3) and Article 31(1)1 of the Enforcement Rule of the Wastes Control Act

Plaintiff 1 and two others (Law Firm Taesung, Attorneys Park Hun-sik, Counsel for the plaintiff-appellant)

Han River Environmental Office

December 22, 2016

1. The Defendant imposed a penalty surcharge of KRW 20,00,000 on Plaintiff 1 on May 25, 2016, the imposition of a penalty surcharge of KRW 20,000 on July 7, 2016, the imposition of a business suspension of one month against Plaintiff 2 on July 7, 2016, and the imposition of a penalty surcharge of KRW 20,00,000 on Plaintiff 3 on June 9, 2016, respectively.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of each disposition of this case;

A. The Plaintiffs are those engaged in the waste disposal business with the permission for the business of collecting and transporting medical wastes from various nationwide hospitals, clinics, research institutes, etc., and hand over such medical wastes to incinerations, etc., and the Defendant is the agency that manages and supervises the waste disposal business entities.

B. On April 2016, the Defendant conducted a special inspection of the current status of the safety management of medical wastes against medical waste producers and disposal companies. As a result, the Plaintiffs discovered the fact that the Plaintiffs collected medical wastes from hospitals, etc. to temporarily store and transport them to the same vehicle with the same loading capacity and transferred them to the same vehicle.

C. Accordingly, the Defendant imposed a penalty surcharge of KRW 20,00,00 in lieu of one month of business suspension on May 25, 2016 on the grounds that “the Plaintiff violated Article 13(1), Article 7(1)3(a) of the Enforcement Decree of the Wastes Control Act, and Article 9(1)(a) of the Enforcement Rule of the same Act,” respectively, on Plaintiff 3, June 9, 2016, and ordered Plaintiff 2 to suspend business for one month on July 7, 2016 (hereinafter “each of the instant dispositions”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 6 (including each number), Eul evidence No. 2 and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

For the following reasons, the Plaintiffs asserts that each of the dispositions of this case should be revoked as it is unlawful.

1) unconstitutionality and invalidity of the underlying statute

Article 7(1)3 proviso and (a) of the Enforcement Decree of the Wastes Control Act (hereinafter referred to as the "Enforcement Decree") and Article 9(1) of the Enforcement Rule of the same Act (hereinafter referred to as the "Enforcement Rule") are not only excessively violating the principle of excessive prohibition under the Constitution, but also unconstitutional and invalid against the principle of clarity. Accordingly, each of the dispositions of this case based on each of the above provisions is unlawful.

(ii) the deviation and abuse of discretionary authority;

Even if each of the above provisions does not violate the Constitution, in light of the contents and degree of the violation committed by the plaintiffs in this case, the disadvantage suffered by the plaintiffs compared to the public interest to be achieved by each of the dispositions in this case is excessive, each of the dispositions in this case is a deviation and abuse of discretionary power.

B. Relevant statutes

Under the following statutes, Article 7(1)3 proviso (a) of the Enforcement Decree of the instant Enforcement Decree provides for “Article 7(1)3 proviso (a) of the Enforcement Decree; Article 9(1) of the Enforcement Rule provides for “the instant Enforcement Rule provision”; Article 9(1) of the Enforcement Rule provides for “the instant Enforcement Rule provision; when referring to both the instant provision and the instant Enforcement Rule provision, “each of the instant provisions”; and the bottom part of each of the instant provisions provides for “the instant issues.”

Article 13 (Standards, etc. for Waste Disposal) (1) of the Wastes Control Act (Standards, etc. for Waste Collection and Transportation) ① Any person who intends to treat wastes shall comply with the standards and methods prescribed by Presidential Decree. (Provided, That the same shall not apply to cases where a person falling under any of the following subparagraphs collects wastes on a vehicle with small loading capacity and transports wastes to a place other than a place where waste can be properly disposed, recycled, or stored: (1) Article 7 (Standards for Waste Collection and Transportation, etc.) of the Enforcement Rule of the Wastes Control Act (hereinafter referred to as "transport to a place prescribed by Ordinance of the Ministry of Environment") (1) Article 7 (1) 3 (proviso) of the Decree No. 25 (1) of the Act shall apply to cases where a person who has obtained permission for waste collection and transportation business falling under Article 25 (5) 1 of the Act transports wastes to a place prescribed by Ordinance of the Ministry of Environment and the head of a local environmental office (hereinafter referred to as "the head of a local environmental office"):

C. Determination

1) An overview of the system for temporary storage of wastes ( Note 1), focusing on medical wastes

A waste treatment business entity shall store wastes in a permitted place of business, such as a temporary storage facility, approved temporary storage facility, etc., and shall not store wastes in excess of the quantity or period prescribed by Ordinance of the Ministry of Environment (Article 25 (9) of the Wastes Control Act).

In addition, the enforcement decree of this case, which prescribes the standards and methods for waste disposal upon delegation of Article 13 of the Wastes Control Act, prohibits in principle the transportation of wastes to a place other than a place where waste can be properly disposed, recycled, or stored, and allows the transportation of wastes to a temporary storage place approved by the head of the competent environmental office as an exception. The enforcement rule of this case also provides for the same purpose.

A temporary storage place shall be limited to one place for each City/Do for each waste collection and transportation company, and the maximum permissible quantity and period for storage at a temporary storage place for each type of waste (Article 9(3) of the Enforcement Rule). In the case of medical wastes, the maximum permissible period for storage at an exclusive storage facility with the temperature of four degrees or less, which can be stored in a cooling house, shall be within five days in the case of storage at an exclusive storage facility with the temperature of four degrees or less, and within two days in the case of other storage facilities, regardless of the storage facilities (Article 31(1)1 of the Enforcement Rule).

On the other hand, a person discharging medical wastes shall store the contents in an exclusive container from the time of the occurrence of medical wastes so that the medical wastes can not be leaked, the exclusive container for which the injection of medical wastes is completed shall be sealed and sealed, and may be stored in a storage facility equipped with detailed standards prescribed by the Enforcement Rule from the lowest seven days to the maximum of 60 days for each type of medical wastes. Medical wastes shall also be collected and transported by a person collecting and transporting medical wastes as an exclusive transport vehicle for medical wastes that satisfies the requirements prescribed by the Enforcement Rule, such as cooling facilities, etc. (Article 14 [Attachment 5](5)(c) and (d) of the Enforcement Rule.

2) History and purport of each of the provisions of this case

Article 19-3 [Attachment 6-2] subparagraph 2 (d) of the former Enforcement Rule of Korea amended by Ordinance of the Ministry of Environment No. 82 on August 9, 199 to allow waste collection and transportation business operators to use a temporary storage place. Since the former Enforcement Rule was amended by Presidential Decree No. 17544 on March 18, 2002, Article 6(1)3 was moved to Article 6(1)3, and the latter provision is maintained until now.

The main purpose of the Wastes Control Act that allows waste collection and transportation business entities to exceptionally use a temporary storage place is to promote the efficiency of waste collection and transportation business by allowing waste collection and transportation business entities to transport small amount of waste collected from each waste-generating business entity (in the case of medical wastes, disease and council members) scattered across the country as soon as possible from the collection date of each waste-generating business entity (in the case of medical wastes), and by allowing waste collection and transportation business entities to transport the small amount of waste collected from each waste-generating business entity (in the case of medical wastes, disease and council members) to an incineration business entity at once. Furthermore, it is anticipated that the efficiency of waste collection and transportation business is to promote the efficiency of waste collection and transportation business by allowing waste collection and transportation business entities to store wastes in a temporary storage

3) Whether the main issue of the instant case was unconstitutional (2)

Each provision of this case limits the Plaintiffs’ freedom to perform their occupation, which is the waste collection and transportation business entity, by allowing waste collection and transportation business entities to use a temporary storage place while collecting wastes into a vehicle with a small load capacity due to the key issue of this case and transporting wastes to a vehicle with a large load capacity. Thus, this case’s main issue is whether the instant part complies with the principle of excessive prohibition, which is the limit of the legislation that restricts fundamental rights as stipulated under Article 37(2) of the Constitution.

(a) the legitimacy of the objectives and the suitability of the means;

The main text of Article 13(1) of the Wastes Control Act delegates to the Enforcement Decree the standards and methods for waste treatment to be observed by a waste disposal business entity. Accordingly, the main text of Article 7(1)3 of the Enforcement Decree prohibits, in principle, the relevant wastes from being transported to a place other than a place where they can be properly disposed of, recycled, or stored, and exceptionally allows the collection and transportation business entity to collect wastes on a vehicle with a small loading capacity and transport wastes to a temporary storage facility to transfer wastes to a vehicle with a large loading capacity, and the provisions of the Enforcement Rule of the instant case also stipulate the same purport.

As such, it is desirable to restrict the use of the temporary storage place based on the loading capacity of the transport vehicle for the first time to promptly and safely dispose of the medical wastes, especially in the case of medical wastes, it is desirable to immediately transport the wastes to the disposal company after collection. If the collection and transportation business entity exceptionally permits the use of the temporary storage place to promote the economic efficiency of the collection and transportation business entity, but no restriction is placed thereon, the collection and transportation business entity may abuse the temporary storage place simply via simple transit even if there is no need for temporary storage.

The key point of this case is to prevent abuse of such temporary storage place and treat wastes promptly and safely. Thus, the legitimacy of legislative purpose is recognized.

Furthermore, allowing waste collection and transportation business operators to use the temporary storage place only when wastes are collected on a vehicle with a small loading capacity based on the loading capacity of the transportation vehicle and transporting wastes to a vehicle with a large loading capacity can bring about certain effects to restrain the abuse of the temporary storage place by the waste collection and transportation business operators into the transit site. Thus, the suitability of the means to achieve the legislative purpose can also be recognized.

B) the minimum extent of infringement

If the use of a temporary storage place is not limited for certain reasons, the legislative intent of the Wastes Control Act is likely to be harmed to promptly and safely dispose of collected wastes. Such concerns may not be readily concluded to be completely resolved by limiting the permissible volume and the period of storage of wastes that a waste collector/operator can store in a temporary storage place under Article 9(3)2(a) of the Enforcement Rule. Therefore, the need to restrict the use of a temporary storage place is sufficiently acceptable in certain cases.

However, as seen earlier, the main purpose of each of the instant provisions is to ensure the economic efficiency and efficiency of waste collection and transportation by collecting small quantities of wastes in a temporary storage place and transporting them to a temporary storage place in a lump sum. Thus, even in a case where legislative devices restricting the use in a certain case are installed to prevent abuse of a temporary storage place, measures should be sought to achieve harmony with the purport of each of the instant provisions, and the purport of allowing temporary storage place should not be punished, nor should the method of imposing excessive burden on the use thereof be selected.

In addition to the contents and purport of the relevant provisions, the key part of the instant case is difficult to be deemed to have the minimum degree of infringement.

① If the loading capacity of the vehicle to be loaded in a temporary storage place is to be compared to that of the vehicle to be loaded in the vehicle to be loaded in the vehicle to be loaded in the vehicle to be loaded in the vehicle to be loaded, for example, it is allowed to collect wastes for three days per day with a loading capacity of one to be loaded in the temporary storage place for three days a day with a loading capacity of three days per day with a loading capacity of one to be stored in the temporary storage place. On the other hand, even if the vehicle can be loaded in the same vehicle as the vehicle to be loaded in the same vehicle as the vehicle to be loaded in the first place for three days due to a large quantity of discharge quantity as medical wastes, it is not allowed for the vehicle to be loaded in the vehicle to be loaded in the same vehicle as the vehicle to be loaded in the first place for three days, on the ground that the loading capacity of the vehicle to be loaded in the vehicle to be loaded in the same vehicle to be loaded in the same vehicle to be loaded in the first place is not permissible

(2) As seen earlier, in order to obtain approval for the establishment of a temporary storage place, the requirements prescribed by the relevant regulations, such as the period of storage, quantity of storage, and facilities for storage, shall be met. Such requirements shall be deemed to have been established to prevent the occurrence of a situation of various problems that may arise when wastes are temporarily stored without immediately transporting them as a

③ The legislative intent of the key part of the instant case to prevent abuse of the temporary storage place is to allow the temporary storage place to be used only in cases where the quantity of wastes brought into the temporary storage place exceeds the quantity of wastes brought into the temporary storage place, i.e., to restrict the quantity of wastes brought into the temporary storage place. Rather, such a method is more effective to achieve the above purpose.

Nevertheless, the key issue of the instant case is: (a) the method of restricting the loading capacity of the vehicle to be taken out is to compel the waste collection and transportation business entity to take out wastes using a vehicle larger than that without conditions, even if the wastes collected at a temporary storage place do not exceed the loading capacity of the vehicle; (b) it is difficult to think that such method is more effective in accomplishing the legislative intent compared with the restriction on the loading capacity of the vehicle; (c) while, as a waste collection and transportation business entity who intends to use a temporary storage place, the waste collection and transportation business entity must inevitably take the wastes collected from the vehicle with the loading capacity to the vehicle with the loading capacity to the vehicle with the loading capacity to be taken out; and (d) to this end, it imposes an excessive burden on the vehicle other than

④ Meanwhile, a person who discharges, collects, transports, recycles, or disposes of industrial wastes prescribed by Ordinance of the Ministry of Environment shall enter the details of the transfer and receipt of wastes on an electronic information processing program as prescribed by Ordinance of the Ministry of Environment whenever discharging, collecting, transporting, recycling, or disposing of such wastes, and medical wastes are enacted to enter such details into an electronic information processing program using radio frequency methods as prescribed by Ordinance of the Ministry of Environment (Articles 18(3) and 45(1) and (2) of the Wastes Control Act, and the competent administrative agency can verify the quantity of wastes brought into a temporary storage site through the electronic information processing program as above and the quantity of wastes taken out, so it cannot be deemed that technical obstacles exist to restrict the use of a temporary storage site based on the quantity of wastes taken out.

(5) Even if the use of a temporary storage facility cannot be a sufficient safety device to dispose of wastes promptly and safely, such deficiencies may be supplemented by strengthening the requirements for temporary storage, such as the period of storage, quantity of storage, and storage, as long as it is premised on the exceptional permission of the temporary storage facility.

C) a balance of legal interests

The legislative purport of the key part of the instant case to prevent the abuse of the temporary storage place itself can sufficiently recognize its public value. However, rather than comparing the quantity and the quantity of the waste itself, if the use of the temporary storage place is restricted based on the loading capacity of the vehicle and the vehicle carrying in, it is difficult for the public interest to be increased compared to the former to the regulatory convenience of the administrative agency.

On the other hand, the key part of the instant case is to compel waste collection and transportation business entities to remove wastes using a vehicle larger than a condition-free vehicle regardless of the quantity of wastes collected at a temporary storage site, and thereby, to use a temporary storage site, and the waste collection and transportation business entities who intend to use the temporary storage site must hold an additional vehicle with a capacity to load more load than that of the vehicle with sufficient loading capacity in their own business. In particular, it may be an excessive burden on small-scale waste collection and transportation business entities, which is superior to the public interest to be achieved by the key part of the instant case. Therefore, the key part of the instant case does not meet the balance of legal interests.

4) Sub-committee

Therefore, the key issue of this case is to recognize the appropriateness of the legislative purpose and the suitability of the means, but it is in violation of the Constitution because it does not meet the minimum of infringement and the balance of legal interests. Therefore, each disposition of this case based on the key issue of this case, which is unconstitutional, is unlawful without having to

3. Conclusion

Therefore, the plaintiffs' claims are with merit, and each of them is accepted, and it is so decided as per Disposition.

Judges Park Jong-hee (Presiding Judge)

(1) Among the wastes discharged from public health and medical institutions, veterinary clinics, testing and inspection institutions, etc., the wastes that are likely to cause harm to human body by infection, etc. and the wastes that are deemed to require special management for public health and environmental protection, such as parts of human body, and carcasses of laboratory animals, as prescribed by Presidential Decree (Article 2 subparagraph 5 of the Wastes Control Act).

2) Although the plaintiffs asserts that each of the provisions of this case itself is unconstitutional, each of the provisions of this case includes the part that exceptionally permits the use of a temporary storage place. The plaintiffs' genuine intent is not to dispute itself to exceptionally allow the use of a temporary storage place, but to dispute the part that stipulates the vehicle's loading capacity as exceptional grounds for exceptional permission. Thus, the subject of determination of unconstitutionality is limited to the key part of this case.