Whether a facility, etc. that discharges wastes temporarily or annually at least fivet of time constitutes “a place of business that discharges wastes at least 5t of time through bonded construction or other work” under Article 2 subparag. 9 of the former Enforcement Decree of the Wastes Control Act (affirmative) and the meaning of “daily work” under the foregoing provision

Subparagraph 1 and 3 of Article 2, Article 18(1), and Article 65 subparag. 2 of the former Wastes Control Act (Amended by Act No. 10389, Jul. 23, 2010); Article 2 subparag. 7, 8, and 9 of the former Enforcement Decree of the Wastes Control Act (Amended by Presidential Decree No. 24543, May 28, 2013)

Defendant 1 and one other

Prosecutor

Attorney Shin Sung-ap

Jeju District Court Decision 2011No598 decided May 31, 2012

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The grounds of appeal are examined.

1. According to the former Wastes Control Act (amended by Act No. 10389, Jul. 23, 2010; hereinafter “Act”), “waste” subject to the Act refers to waste, etc. that is no longer necessary for human life or business activities. “Industrial waste” refers to waste generated from a place of business that installs and operates emission facilities in accordance with the Clean Air Conservation Act or other Acts or “other places of business prescribed by Presidential Decree” (Article 2 subparag. 1 and 3 of the Act). Pursuant to the delegated provision of the Act, Article 2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 24543, May 28, 2013; hereinafter “Enforcement Decree”) provides for “place of business producing industrial waste.” In most words, “place of business producing industrial waste” refers to wastewater treatment facilities, public sewage treatment facilities, excreta treatment facilities, waste treatment facilities, etc., which are planned to discharge wastes from the commencement of construction work to the commencement of construction work to the commencement of construction work (excluding from the commencement of construction work at least 30 days from the beginning of construction work).

In light of the contents and legislative intent of the aforementioned statutory provisions, Article 2 subparag. 9 of the Enforcement Decree of the Act provides that a place of business discharging wastes shall be construed as a provision that comprehensively regulates facilities, etc. discharging wastes temporarily or once more than 5t in addition to a place of business under subparagraph 7 that continuously discharges wastes, or a place of business under subparagraph 8 that discharges wastes temporarily or once. As such, the nature of the facility ought to be seen as not a place of business that generates wastes from its original nature. Moreover, the term “daily work” under the above provision refers to a place of business that includes all factual acts, such as performance of duties under the overall purpose and plan related to each other. Thus, there is no restriction on its form or content, but only the term “construction work” due to construction, etc. under

2. The lower court acquitted all of the facts charged on the premise that ○○ Agricultural Cooperative or its low temperature storage was a “workplace waste” under Article 2 subparag. 3 of the Enforcement Decree, on the ground that there is no evidence to prove the crime, and there is no evidence to prove that the ownership of the Nonindicted Party, the bailor, as the owner of the Nonindicted Party, should be returned due to the expiration of the deposit contract, and it cannot be deemed that the Nonindicted Party was a waste generated from a series of works in the ○○ Agricultural Cooperative. Therefore, the lower court acquitted all of the facts charged in this case on the ground that there is no evidence to prove the crime.

3. However, we cannot accept the above judgment of the court below.

The facts charged of this case are as follows: (a) ○ Nonghyup entered into a deposit contract with the Nonindicted Party and kept it in a low temperature store with the Nonindicted Party while the contract period expires; (b) as the Nonindicted Party did not find it, the Defendants conspired to treat it by means of dumping it without permission; and (c) without permission by means of spraying it on the land; and (d) without permission by means of mixing it with soil using a bitter; and (e) Defendant 2 obtained a claim from the residents; (c) Defendant 2 collected 15t of the stale, which was disposed of without permission, and dumped without permission in a grass forest of his own land.

In this case, the lower court also acknowledged that the “brut” constituted “waste” as stipulated in Article 2 subparag. 1 of the Act. In addition, in light of the legal doctrine as seen earlier, the Defendants’ process of arranging low temperature storage, such as the staleing of the stale in the ○○ Agricultural Storage at low temperature, etc., such process constitutes “frut work” as stipulated in Article 2 subparag. 9 of the Enforcement Decree. Therefore, barring any special circumstance, barring any special circumstance, insofar as the facts identical to the facts charged in the instant case are acknowledged, the ○○ Agricultural Cooperative Storage at low temperature constitutes “business place discharging wastes at least 5t through daily training,” and the stale in this case’s situation that the stale would originally be returned by the Nonindicted Party as the ownership of the Nonindicted Party does not affect such judgment.

Ultimately, the stalm of this case is “waste generated from other places of business prescribed by Presidential Decree” and falls under “commercial wastes” as prescribed by Article 2 subparag. 3 of the Act. The lower court erred by misapprehending the meaning of “place of business” as prescribed by Article 2 subparag. 9 of the Enforcement Decree, and affected the judgment. Therefore, the allegation in the grounds of appeal pointing this out is with merit.

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)