2019Du41003. Revocation of the imposition of charges for installing waste disposal facilities.

person

Korea Land and Housing Corporation

Law Firm Democratic LLC, Counsel for defendant-appellant

Attorney Gyeong-hun, Justice Park Byung-hun, Counsel for plaintiff-appellant

Military Distribution Market

Law Firm Lee Jae-won, Counsel for the plaintiff-appellant

Attorney Kim Jong-young, Counsel for the defendant-appellant

Seoul High Court Decision 2017Nu53493 Decided April 26, 2019

October 18, 2019

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the Plaintiff’s ground of appeal

A. Ground of appeal No.1

1) According to Article 6(1), (2), and Article 7 of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter “Waste Facilities Promotion Act”), a person who intends to develop a multi-family housing complex or a housing site (hereinafter “project implementer”) is not required to install waste disposal facilities in a multi-family housing complex or housing site subject to the development (hereinafter “relevant project district”), but is installed outside the relevant project district. However, waste disposal facilities under the Waste Facilities Promotion Act are for disposal demand generated from the development of a new multi-family housing complex or housing site. Unless there are special circumstances, such as where a plan to install waste disposal facilities in a housing site development project has been formulated and approved separately from the relevant project district, the project implementer must install the following business plan on the premise that the housing site development project is to be installed in the relevant project district or pay an amount equivalent to the installation expenses incurred therein (see, e.g., Supreme Court Decision 2013Du8745, Dec. 15, 2016).

2) The lower court determined that it was not unlawful for the Plaintiff to calculate the cost of installing waste disposal facilities based on the site cost per unit area of the instant project district, since the Plaintiff cannot be deemed to have established a plan to dispose of wastes generated in the instant project district outside of the instant project district and obtained approval therefor, the land outside the instant project district cannot be deemed to have been determined as a site for waste disposal facilities.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal, or by misapprehending the legal doctrine on the confirmation of the place of waste disposal facilities installed under the Waste Facilities Promotion Act.

B. Ground of appeal No. 2

1) The grounds of appeal on this part did not decide whether to dispose of food waste generated in the instant project district or not to be a compost facility, and thus, the costs of installing the compost facility and the costs of installing the fodder facility should be calculated on an average basis.

2) Based on its adopted evidence, the lower court recognized the fact that the costs of installing food waste disposal facilities were calculated on the basis of compost facilities based on the payment plan submitted by the Plaintiff to the Defendant pursuant to Article 6(1) and (4) of the Waste Facilities Promotion Act and Article 4(5) of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs Support, etc. (hereinafter “Enforcement Decree of the Waste Facilities Promotion Act”), and determined that the Defendant calculated the costs of installing food waste disposal facilities on the basis of compost facilities as stated in the payment plan.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the calculation of the amount of the cost of installing waste disposal facilities under the New Promotion Act in determining that it was not illegal to calculate the cost of installing food waste disposal facilities based on the compost facilities based on the details of the payment plan prepared and submitted by the

C. Ground of appeal No. 3

1) Based on its adopted evidence, the lower court found that the daily food waste disposal volume expected to have occurred in the project district of this case was 2.12 tons and the maximum amount of production does not exceed 10 tons, and determined that the Defendant’s application of the scale index as “1.2” pursuant to Article 3-4(1)1 of the Ordinance on Promotion of the Installation of Military Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter referred to as the “Ordinance”) by deeming the scale of the food waste disposal facilities in the project district of this case as “1 to 10 tons.”

2) The daily disposal capacity of the food waste disposal facility is effective from an economic perspective to determine the maximum amount of food waste expected to have occurred per day at a level that does not exceed the maximum amount of daily food waste. Therefore, as recognized by the lower court, it is reasonable to expect that the daily disposal capacity of the food waste disposal facility will be determined within the range of “1 to 10 tons” if the maximum amount of food waste expected to have occurred per day does not exceed 10 tons of the instant business district.

Although the reasoning of the judgment below is somewhat insufficient, the judgment of the court below that the application of the size index of food waste disposal facilities to the "1.2" for the instant project is legitimate is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the meaning of the "one-day treatment capacity of food waste disposal facilities" and thereby affecting the conclusion of the judgment

2. As to Defendant’s ground of appeal

A. Ground of appeal No.1

1) Where a statute delegates a specific matter to a municipal ordinance, determination as to whether the municipal ordinance complies with the limits of delegation ought to be made by comprehensively examining the legislative purpose and content of the relevant statutory provision, structure of the provision, and relationship with other provisions. Whether a new legislation was made beyond the bounds of delegation by expanding or reducing the scope of the terms used in the relevant statutory provision beyond the bounds of delegation (see, e.g., Supreme Court Decision 2017Du56193, Aug. 30, 2018).

In light of the language, structure, etc. of Article 6 of the Waste Facilities Promotion Act and Article 4 of the Enforcement Decree of the Waste Facilities Promotion Act, the area of "management operation" and "other facilities, such as sub-driving, etc., on the site of the waste disposal facilities in attached Table 1 of this Ordinance shall be included in the area of the waste disposal facilities, and where the area of the waste disposal facilities does not exceed 330 meters per day with the daily treatment capacity of 500 tons, it is merely the specification of the upper statutes, and it shall not be deemed invalid beyond the bounds of delegation by the upper statutes (see, e.g., Supreme Court Decision 2016Du61051, Jul. 10, 2019).

2) Nevertheless, the lower court determined that the part on the calculation of the site area of the “management Dong” and “other facilities such as sub-dong” in attached Table 1 of the instant Ordinance were invalid beyond the scope delegated by the Enforcement Decree of the Waste Facilities Promotion Act and the Waste Facilities Promotion Act, and that it was unlawful that the Defendant calculated the site purchase cost by including 330 meters of the site area of the “management Dong” and “other facilities such as sub-dong, etc.” in the site area of the waste disposal facility in the area of the waste disposal facility.

In so determining, the lower court erred by misapprehending the legal doctrine on the calculation of the corresponding amount of waste disposal facilities under the Waste Facility Promotion Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

B. Ground of appeal No. 2

1) According to Article 22 of the Local Autonomy Act and Article 4(3) of the Framework Act on Administrative Regulations, where a local government establishes a municipal ordinance concerning the restriction on the rights of residents, the imposition of obligations on residents, or penal provisions, the statutory delegation is required. Therefore, the municipal ordinance that prescribes matters concerning the restriction on the rights of residents or the imposition of obligations on residents without statutory delegation is invalid (see Supreme Court en banc Decision 2010Du19270, Nov. 22, 2012).

In light of the language, structure, etc. of the Waste Facilities Promotion Act and the Enforcement Decree of the Waste Facilities Promotion Act, convenience facilities for residents shall not be included in the waste disposal facilities to be installed by a project implementer, and the cost of installing facilities for convenience of residents shall not be included in the amount equivalent to the cost of installing the waste disposal facilities (see, e.g., Supreme Court Decisions 2016Du3529, Nov. 1, 2018; 2016Du61051, Jul. 10, 2019).

2) The lower court determined that the part of the cost of installing waste disposal facilities, including 10% of the site area of the facility site as part of the attached Table 1 of the instant Ordinance, including the cost of installing waste disposal facilities, is invalid because it exceeds the bounds of delegation by expanding the scope of interpretation as possible under the Enforcement Decree of the Waste Facilities Promotion Act and the Waste Facilities Promotion Act.

The above determination by the court below is based on the legal principles as seen earlier. In so doing, it did not err by misapprehending the legal principles on the calculation of the amount of waste disposal facility costs under the Waste Facility Promotion Act.

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo