[1] Whether a local government which is a waterworks business operator is in violation of the provisions of Articles 23 and 52-2 (1) of the former Water Supply and Waterworks Installation Act, which prescribes the provisions concerning the cost-bearing of construction works for the water supply facilities by the municipal ordinance and imposes a charge on a person intending to carry out water supply construction works (affirmative)

[2] The case holding that Article 9 (1) of the Seoul Special Metropolitan City Water Supply and Waterworks Installation Act, which stipulates that Article 9 (1) of the Seoul Special Metropolitan City Water Supply and Waterworks Ordinance, which stipulates that the construction cost for the single-type line pipelines of the drainage pipe shall be included in the calculation element of the fixed construction cost for the watersupply facilities, shall be borne by the person intending to carry out water supply construction works, has no effect since it has been in violation

[3] The case holding that since the implementation of the fixed amount system of water supply construction works in Seoul Special Metropolitan City (Notice No. 290 of August 10, 1981) announced not only the part of residential buildings but also the part of ordinary buildings as well as the part of the ordinary buildings as well as the part of the general building, as stipulated in Article 9 (1) of the Seoul Special Metropolitan City Ordinance on Water Supply and Waterworks which has no effect, the total amount of the water supply construction cost calculated by including the construction cost of the simplified pipelines in the calculation element

[1] Unless otherwise specifically provided in the relevant Acts and subordinate statutes, such as the former Water Supply and Waterworks Installation Act (amended by Act No. 6828 of Dec. 26, 2002), local governments which are waterworks business operators shall bear the expenses for the installation of the waterworks, and the local governments which are waterworks business operators shall stipulate the expenses for the installation of the waterworks by the Municipal Ordinance concerning the expenses for the installation of the water supply facilities. Therefore, local governments which are waterworks business operators stipulate the provisions concerning the expenses for the installation of the water supply facilities by the Municipal Ordinance concerning the expenses for the installation of the water supply facilities which are not the water supply facilities, and imposes the expenses on those who wish to construct the water supply facilities which

[2] The case holding that Article 9 (1) of the Seoul Special Metropolitan City Water Supply and Waterworks Installation Act (amended by Act No. 6828 of Dec. 26, 2002), which stipulates that the construction cost for the single-type line pipelines of the drainage pipe shall be included in the calculation element of the fixed construction cost for the watersupply facilities and shall be borne by the person intending to construct water supply facilities, is in violation of the provisions of Articles 23 and 52-2 (1) of the former Water Supply and Waterworks Installation Act (amended by Act No. 6828

[3] The case holding that since the implementation of the fixed amount system of water supply construction works in Seoul Special Metropolitan City (Notice No. 290 of August 10, 1981) announced not only the part of residential buildings but also the part of ordinary buildings as well as the part of the ordinary buildings as well as the part of the general building, as stipulated in Article 9 (1) of the Seoul Special Metropolitan City Ordinance on Water Supply and Waterworks which has no effect, the total amount of the water supply construction cost calculated by including the construction cost of the pipeline in the calculation element of the fixed

[1] Article 3 subparagraph 5 of the former Water Supply and Waterworks Installation Act (amended by Act No. 6828 of Dec. 26, 2002), Article 23, Article 52-2 (1) (see current Article 52-2), Article 15 of the Local Autonomy Act / [2] Article 3 subparagraph 22 of the former Water Supply and Waterworks Installation Act (amended by Act No. 6828 of Dec. 26, 2002), Article 23 (see current Article 23 (1)), Article 52-2 (1) (see current Article 52-2), Article 15 of the Local Autonomy Act, Article 9 (1) of the Seoul Special Metropolitan City Water Supply and Waterworks Installation Act / [3] Article 3 subparagraph 22 of the former Water Supply and Waterworks Installation Act (amended by Act No. 6828 of Dec. 26, 2002), Article 23 (1) (2) (see current Article 25-2 (1) and (2) (2) of the Local Autonomy Act)

Inurncheon 3 District Housing Improvement Development Cooperatives (Attorney O Jong-tae, Counsel for the plaintiff-appellant)

Seoul Southern Water Service Director (Law Firm Hong, Attorneys Ansan-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Nu11303 delivered on June 27, 2003

The part of the judgment of the court below concerning the imposition of the water supply construction cost on March 24, 2001 is reversed, and the judgment of the court of first instance on this part is revoked, and this part of the lawsuit is dismissed. The defendant's remaining grounds of appeal are dismissed. The total costs of the lawsuit are three minutes, and one of them is borne by the plaintiff and the remainder

Judgment ex officio is made.

1. As to the legitimacy of a lawsuit regarding the disposition imposing the water supply construction cost on March 24, 2001

According to the records, on March 24, 2001, the Defendant imposed a disposition on the Plaintiff to impose the water supply construction cost of KRW 484,439,03 on the leased apartment units completed as a redevelopment project and its ancillary facilities, which requires the payment of KRW 484,439,030,00 for the water supply construction cost for the commercial buildings and welfare Dongs. The Plaintiff received the above disposition around that time and filed the lawsuit on July 13, 2001, which was 90 days after the payment of the above amount, which was 90 days after the above disposition was 90 days after the date of notice of the disposition, and thus, the part seeking cancellation of the above disposition among the lawsuit of this case can not be seen as being unlawful within 60,000,000,000,000,000 won, which was 40,0000,000,000 won prior to that of the above disposition.

2. As to the illegality of imposition of each water supply construction cost as of April 10, 2001 and April 25, 2001

(a) Whether Article 9(1) of the Water Services Ordinance violates the Act;

(1) Article 3 subparag. 5 of the former Water Supply and Waterworks Installation Act (amended by Act No. 6449 of Mar. 28, 2001 and enforced on Sep. 29, 2001; hereinafter “Water Supply and Waterworks Installation Act”) provides that the term “water supply” refers to the whole of facilities providing raw or processed water using pipes or other structures, and Article 52-2(1) provides that the costs of installing the water supply shall be borne by the waterworks business operator. Article 23 provides that the general waterworks business operator shall establish the provisions concerning the cost of installing the water supply facilities under the conditions as prescribed by the Presidential Decree and shall obtain the approval of the authorizing office before the supply of tap water. In case the waterworks business operator is a local government, according to the contents and purport of each of the above provisions, the local government, which is a waterworks business operator, shall bear the costs of installing the water supply facilities. However, with respect to the cost of installing the water supply facilities, a waterworks business operator is required to impose the cost of installing the water supply facilities under Article 2(3).

However, Article 3 subparag. 22 of the Water Supply and Waterworks Installation Act provides that the term “water supply system” refers to the water supply pipes, measuring instruments, water tanks, water pipes and other water supply equipment connected to the water supply pipes installed by the water supply business operator for the purpose of providing the raw or processed water to general consumers (Article 2 subparag. 1 of the Water Supply and Waterworks Installation Act also provides that the term “water supply construction works” refers to the construction works such as the construction, remodeling, repairing, and removal of the water supply facilities. Furthermore, Article 6(1) of the Water Supply and Waterworks Ordinance provides that a person who intends to implement the water supply construction works shall obtain approval from the Mayor of Seoul Special Metropolitan City, and the design and construction of the relevant construction works shall be carried out by the Mayor of Seoul Special Metropolitan City. Article 8(1) provides that the construction expenses within the water supply complex shall be paid by the consumers for a certain amount of money per unit area (hereinafter referred to as “fixed amount of construction expenses”), and the construction expenses shall be determined and publicly notified by the Mayor of Seoul Special Metropolitan City for the purpose of the supply and water supply facilities under Article 10.

Meanwhile, Article 11(1) of the Water Supply and Waterworks Installation Act provides that a person who intends to newly install an exclusive water supply system or expand the boundaries of water supply pipes shall concurrently impose the cost of construction under Article 8. This is based on Articles 129 and 130(1) of the Local Autonomy Act that allows residents who especially benefit from the property of a local government or the installation of public facilities to collect the cost by Municipal Ordinance within the scope of their benefit. However, even according to the provision itself, it is clear that the cost of facilities is separate from the fixed cost of water supply facilities under Article 8 of the Water Supply and Waterworks Installation Act. According to the records, the defendant imposed the imposition of the cost of each water supply system at the same time on the plaintiff, and the plaintiff did not object to the imposition of the cost of each water supply system. Further, Article 53(1) of the Water Supply and Waterworks Installation Act provides that the person who provided the cause of the cost of water supply system and the method of calculating the cost of water supply facilities per unit area shall be subject to the imposition of the cost of construction charges in advance.

Thus, Article 9 (1) of the Water Supply and Waterworks Installation Act that stipulates that the construction cost for the pipeline shall be included in the calculation factor of the fixed construction cost and the user shall be borne by the user is in violation of the provisions of Articles 23 and 52-2 (1) of the Water Supply and Waterworks Installation Act and shall not be effective.

(2) In addition, on August 10, 1981, the Mayor of Seoul Special Metropolitan City issued a public announcement on the implementation of the fixed amount system of new water supply construction works (hereinafter “the public announcement of this case”) with the content of KRW 1,800 per square meter for a building with a residential building with a building area of less than 290,000 square meters per household; KRW 290,000 for a general building with a building area of not less than 165 square meters per annum; and KRW 1,800 for a building with a building with a building area of not less than 165 square meters per square meter per annum. This fixed construction cost is not only the construction cost necessary for installing the water supply system for residential buildings, including apartment houses and tenement houses (excluding the building area of not less than 165 square meters per annum), but also the fixed amount of general residential standard water supply construction cost, including the construction cost for the fixed amount of the above standard water supply construction cost, as well as the construction cost for a building with a fixed amount of not less than 165 square meters per annum.

B. Whether imposition of each water supply construction cost on April 10, 201 and April 25, 2001 is unlawful

According to the records, the defendant's imposition of the water supply cost of KRW 940,018,150 on general apartment units 3,544 households of April 10, 2001 and on ancillary facilities and convenience facilities, and imposition of the water supply cost of KRW 2,630,950 on the Dong office on the 25th day of the same month can be known to the fact that the amount of the water supply cost is calculated and imposed on the ground of Article 9 (1) of the Ordinance without effect as above and the notice of this case based thereon. Thus, each of the above dispositions is all unlawful, including the part on incidental facilities and convenience facilities, and the part on the Dong office.

As seen above, although Article 9(1) of the Water Supply and Waterworks Installation Act provides the premise for a trial whether the above disposition is invalid as it violates the provisions of Articles 23 and 52-2(1) of the Water Supply and Waterworks Installation Act, the court below did not ex officio examine it. However, the court below erred in holding that each disposition taken on April 10, 201 and April 25, 2001, which was made on the notice of this case, was unlawful as the notice of this case was null and void as it was based on its stated reasoning. However, the court below's conclusion that each of the above dispositions was unlawful is correct, and therefore, the above error does not constitute an error affecting the conclusion of the judgment, and therefore, the ground for reversal is not justified.

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the part concerning the imposition of the water supply construction cost on March 24, 2001 among the judgment below is reversed, and this part is sufficient to be judged by the Supreme Court, and therefore, the judgment of the court of first instance on this part is revoked and the lawsuit is dismissed, and the remaining appeal by the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Chief Justice Lee Yong-chul (Presiding Justice)