2015Guhap81065 Action for the cancellation of a disposition of order for prohibition of assignment and assignment

A

The Minister of Environment

September 9, 2016

October 7, 2016

1. The Defendant’s disposition to prohibit the transfer of rocks against the Plaintiff on September 11, 2015, and the disposition to collect and prohibit the transfer of rocks on October 23, 2015, respectively, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant's disposition of recovery and prohibition of transfer of the transferred rock on September 11, 2015 against the plaintiff on August 18, 2015, and the disposition of recovery and prohibition of transfer of the transferred rock on October 23, 2015, respectively, of the transferred rock on August 18, 2015 and on September 14, 2015, shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a business entity that excavates and collects natural rocks from C Quarrying located within B B incheon-si (the permission for collection of earth and rocks was cancelled on June 25, 2012 and is currently being used as a temporary storage for soil and aggregate for the promotion of the neighboring DNA restoration project; hereinafter “C Quarrying”) and sells them as landscaping stone.

B. On August 18, 2015, around 17:53 to 18:30 on August 18, 2015, the Plaintiff excavated and extracted natural rocks in CQuarrying and sold them to E located in Chungcheong City (hereinafter referred to as “W”), and on September 11, 2015, the Defendant recovered the first out rocks from the Plaintiff pursuant to Article 8(3) of the Asbestos Safety Control Act by no later than 2015, October 16, 2015 on the ground that the Plaintiff sold the first out rocks (the first out rocks) containing asbestos, and the Defendant prohibited the transfer of the first out rocks (the first out rocks) with asbestos-containing asbestos-containing rocks in C stone collection site and adjacent roads in the future (hereinafter referred to as the “instant Disposition No. 1”) (the instant Disposition No. 1).

C. On September 14, 2015, the Plaintiff: (a) excavated and extracted natural rocks in CQuarrying and sold them to persons under consideration of their name (hereinafter referred to as “second-out rocks”) on the ground that the Plaintiff did not recover the first out rocks; and (b) sold the second out rocks containing asbestos, on October 23, 2015, pursuant to Article 8(3) of the Asbestos Safety Management Act, the Plaintiff recovered the first and second out rocks from the Plaintiff until November 20, 2015; and (c) subsequently, prohibited the transfer of the second out rocks from taking out the first and second out rocks from taking out the first out rocks (hereinafter referred to as “the second out rocks from taking out the first out rocks”); and (d) prohibited transfer of the second out rocks from taking out the first out rocks from taking out the second out rocks; and (e) prohibited transfer of the second out rocks from taking out the first out rocks from taking out the second out rocks from the second out rocks.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 10, 14 (including each number), the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The first and second rocks were taken out from Ycheon City. Since asbestos is natural rocks that are not detected on the surface due to long-term winding effect, etc., it cannot be viewed as itself, and it cannot be viewed as "products" that are physically and chemically modified goods, and thus does not constitute "asbestos or asbestos-containing products" under Article 8(3) of the Asbestos Pre-Management Act. Nevertheless, each of the dispositions against the first and second rocks of this case, unlike this premise, is unlawful.

2) The Defendant: (a) prevented the transfer of asbestos-containing rocks placed on the C Quarrying and adjacent roads; (b) thus, each of the instant1 and 2 was not specified in the subject of the instant disposition; and (c) was de facto prohibited from transferring all of the rocks in C Quarrying, and thus, abused and abused discretion.

3) The first and second transfer prohibition measures taken against the Plaintiff are against the principle of equality, even though there are 20 or more companies selling landscaping stone, as shown in the Plaintiff, and there are also no asbestos in landscaping stone sold by the above companies.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) As a result of the Defendant’s inspection on the actual condition of the C Quarrying from October 23, 2013 to October 24, 2013, asbestos was detected at two rocks extracted from C Quarrying (hereinafter “the primary ingredients inspection”).

2) As a result of the analysis of aggregate and landscape rocks buried in Gyeongcheon City, I, which appears to have been taken out on April 1, 2014 and on the 3th of the same month by the Hanju Regional Environment Office (hereinafter referred to as “the second component examination”), asbestos was detected in the area of landscaping (hereinafter referred to as “the second component examination”).

3) On January 28, 2016, after the filing of the instant lawsuit by the Defendant, the Defendant collected and analyzed a total of 21 samples from 3 rocks by parcel number for the parcels, namely, J, K, L, M, N, or 7 parcels on January 28, 2016, and found asbestos from all samples (hereinafter referred to as “third ingredients inspection”).

4) On March 8, 2016, the Defendant collected samples from the primary cancer in the Chungcheong State F on March 8, 2016 and analyzed asbestos was found as a result of the analysis (hereinafter “fourth ingredients inspection”).

5) As a result of the study on the preparation of the precision geological map of naturally occurring asbestos, which was conducted by the Defendant from October 23, 2013 to October 22, 2014, the asbestos was detected from 76 samples of rocks sample 107, which were collected in the vicinity of the C Quarrying (hereinafter referred to as “the result of the study on precision geological maps”).

【Reasons for Recognition】 Each entry in the Evidence Nos. 1 through 5, 11 through 15, and the purport of the whole pleadings

D. Determination

1) As to the first collection disposition of this case and the second-1 collection disposition of this case

A) According to Article 2 of the relevant Regulation and Asbestos Safety Management Act, "asbestos" means a substance prescribed by Ordinance of the Ministry of Environment, as a stein mineral naturally produced and in the fiber form (subparagraph 1), and "asbestos-containing product" means a product containing asbestos, which processes a suspected asbestos-containing material under Article 11(1).

- No one shall manufacture, import, transfer, provide, or use (hereinafter referred to as "use, etc.") asbestos or asbestos-containing products (hereinafter referred to as "asbestos, etc.") except modified products (Article 2), and the head of a related central administrative agency or a Mayor/Do Governor may collect and examine asbestos, etc. in order to verify the actual state of use, etc. of asbestos, etc. (Article 2) and the head of a related central administrative agency or a related Mayor/Do Governor may order a person who violates paragraph (1) as a result of an inspection conducted under paragraph (2) to recall or prohibit the use of asbestos, etc., as prescribed by Presidential Decree (Article 3).

B) Whether the primary rock is an asbestos or asbestos-containing product

The issue of illegality of an administrative disposition in an appeal litigation shall be determined on the basis of the law and fact at the time of an administrative disposition. The court shall determine the objective fact that existed at the time of disposition by integrating not only the materials known to the administrative agency at the time of the closing of arguments at a fact-finding court, but also all the materials submitted until the time of closing of arguments at the time of the closure of arguments at a fact-finding court (see Supreme Court Decision 2009Du11843, Jan. 14, 2010). As seen earlier, as a result of the fourth ingredients examination conducted during the litigation of this case, asbestos was detected from the first mar sample sample, and as long as it is difficult to deem that the Defendant committed an act of collecting samples by crushinging part of the above marine surface with a view to analyzing asbestos using the marbane view, it is reasonable to deem that the asbestos was contained in the first

Furthermore, the purpose of the Asbestos Safety Control Act is to prevent damage to people's health caused by asbestos and to enable people to live in a healthy and pleasant environment by safely managing asbestos. ② In the event that asbestos is sufficiently detected in natural rocks and asbestos is scattered in rocks containing asbestos, there is a risk of harm to people's health, ③ Article 8 (3) of the Asbestos Safety Control Act provides that "the subject of recovery or prohibition of sale is not designated as "asbestos, etc.", ④ the criteria for asbestos in modified asbestos-containing materials publicly notified by the Ministry of Environment, which is the competent authority in the Asbestos Safety Control Act (No. 2012-73 of the Ministry of Environment notice), and it is reasonable to interpret "Article 8 of the Asbestos Safety Control Act" as "final products" if landscaping rocks are distributed as it is, rather than being limited to products that have undergone physical and chemical manufacturing processes, and thus, asbestos products are deemed to fall under "Article 8 of the Asbestos Safety Control Act."

C) Sub-decision

Ultimately, the Plaintiff’s first-out cancer sold to Chungcheong F, and transferred asbestos-containing products in violation of Article 8(1) of the Asbestos Safety Management Act. As such, the first-out and second-1 collection dispositions are lawful on the same premise, and the Plaintiff’s assertion is without merit.

2) As to the collection disposition of this case No. 2-2

In light of the following circumstances as seen earlier, namely, ① the primary composition test and the secondary composition test are unclear as to the rocks released from any location in the C Quarrying, ② the Plaintiff asserted that the secondary shipment cancer was shipped out of G incheon City. The Defendant conducted the third composition test for the parcels other than the above G; ③ even according to the research results related to the precision geological map, it is evident that asbestos is not detected in the sample collected in C Quarrying; ④ it is unclear where the secondary shipment site was taken out, and ④ it is unclear where the first shipment site was not carried out, and thus, it is insufficient to recognize that the evidence submitted by the Defendant alone contains asbestos in the second shipment site, and there is no other evidence to acknowledge otherwise. Accordingly, the instant disposition of recovery of the rocks, which is different from this premise, is unlawful.

3) As to the prohibition of assignment in the first and second cases

As examined in the aforementioned relevant provisions, the object of prohibition of sale under Article 8(3) of the Asbestos Safety Management Act is limited to the products manufactured, imported, imported, transferred, supplied, or used in cases where asbestos or asbestos-containing products are manufactured, imported, supplied, or used in violation of Article 8(1) of the Asbestos Safety Management Act.

However, even though the asbestos content rocks placed on the "C Quarrying" and adjacent roads subject to a disposition of prohibition of transfer of the instant Claims 1 and 2 are separate from whether the subject of the disposition is specifically specified or whether all asbestos are contained in the above rocks, it is difficult to view that the Plaintiff was manufactured, imported, transferred, provided, or used by the Plaintiff solely on the ground that the rocks are placed in a specific place, and thus, each of the instant dispositions of prohibition of transfer of the instant Claims 1 and 2 is unlawful without further need.

3. Conclusion

Therefore, the plaintiff's claim as to the prohibition of transfer and the collection disposition of this case Nos. 1 and 2 of this case is justified. Thus, the plaintiff's claim as to the prohibition of transfer and the collection disposition of this case is accepted, and the remaining claim is dismissed as it is so

The presiding judge, judges, full-time council

Judges Nam Sung-woo

Judges Gin Jae-in