(영문) 서울고등법원 2017.4.20.선고 2016누70873 판결

1. Of the judgment of the court of first instance, the part of the judgment against the defendant who revoked the disposition of recovery of 'transfer rock' against the plaintiff on October 23, 2015, which was rendered by the defendant against the plaintiff on September 14, 2015, is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and 40% is borne by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The defendant's disposition of collecting and prohibiting transfer of transferred rocks as of September 11, 2015 against the plaintiff, and the disposition of collecting and prohibiting transfer of transferred rocks as of August 18, 2015 against the plaintiff is revoked as of August 18, 2015, and the disposition of collecting and prohibiting transfer of transferred rocks as of August 18, 2015, respectively.

2. Purport of appeal

○: The part against the Plaintiff in the judgment of the first instance shall be revoked. The Defendant’s collection of transferred rocks against the Plaintiff on September 11, 2015, on August 18, 2015, and the collection of transferred rocks on October 23, 2015, respectively, shall be revoked.

○ Defendant: The part against the Defendant in the first instance judgment shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

Reasons

1. The reasoning for the court’s explanation as to the grounds for each of the dispositions in this case and whether each of the dispositions in this case is legitimate is as follows, since the reasoning for the judgment in the first instance is identical to the corresponding part of the grounds for the judgment in the first instance, except for the cases where the six-party 19 to the 7-party 18-party 18-party 18-party 6 of the judgment in the first instance, and thus, it is acceptable

2. Parts to be dried;

2) As to the collection disposition of this case Nos. 2-2 and 2-1, 2, 3-1, 1, 10-1, 11-5, 12, 14-1, 2, 3, 15, 16-2, 3, and 4-17-2, 17-3, and 8 (3) of the Asbestos Safety Control Act by comprehensively taking account of the following circumstances, which can be known in light of the aforementioned facts of recognition as to the collection disposition of this case Nos. 2-2 and 2, 3-1, 10-1, 11-5, 12, 14-2, 15, 16-2, 17-2, 3, and 4, 2-2, 3, and 4, the Plaintiff’s second-out rock also transferred asbestos content products in violation of Article 8(1) of the Asbestos Safety Control Act by selling the second-out rocks to a person who has no name.

① As a result of the primary ingredients examination, asbestos was detected in two cases of rocks released from C Quarrying, and asbestos was found in three landscaped rocks near C Quarrying even in the secondary ingredients examination. After the secondary removal of rocks from C Quarrying, three rocks were collected in seven parcels where three rocks were loaded, and all third ingredients tests were conducted for 21 samples. Asbestos was found. According to the results of the detailed geological examination, asbestos was detected in 76 samples near C Quarrying and 67 points out of 107 points for 107 points for cancer samples and asbestos was found in both soil samples. Even if some of the rocks were not found in C Quarrying, even if some of the rocks were investigated by collecting samples from part of the rocks, it seems highly probable that most of the rocks removed from C Quarrying contains asbestos in a very high level. Furthermore, in view of the scale of soil contamination and 201 points out of the 107 point for soil samples in C Quarrying, it is highly probable that asbestos was removed from the 201st place.

② Furthermore, asbestos is a 1st group of cancer substances designated by the World Health Organization (WHO) and is a representative hazard factor that causes diseases, such as waste cancer, malute, and asbestosis, when exposed to the human body through respiratory devices even in small quantities. In order to prevent damage to the health of the people from such hazard, the Asbestos Safety Management Act requires the developer to establish “plan to prevent scattering of asbestos” even “naturally produced asbestos” and “plan to prevent scattering of asbestos,” which is taken out from the natural environment, to the extent that it is scattered or scattered.

(3) According to Article 8 (2) of the Asbestos Safety Control Act, a defendant may collect and examine asbestos or asbestos-containing products, and order a person who manufactures, imports, transfers, provides, or uses asbestos as a result of an inspection to recall or prohibit the sale of the relevant product. Even after collecting asbestos-containing products, the collection of an asbestos-containing product is merely a means of investigating whether it is an asbestos-containing product, and thus, does not necessarily have to be physically identical to the subject matter to be collected and the subject matter to be recovered. As a result of an investigation into the collected article, if an asbestos-containing product can be deemed to be an asbestos-containing product. Therefore, even if the second asbestos-containing product to be recovered was not directly collected and inspected, if the manufacturing, importation, transfer, provision, or use of the asbestos-containing product is verified as a result of an inspection by another method

④ As rocks carried out from stone collection sites may be transferred at a certain unit, and “products” are referred to as “goods made from raw materials,” and it is not limited to physical and chemical manufacturing process. The Plaintiff’s secondary rocks taken out from the 2nd vehicle on September 14, 2015 constitute “products” that are discovered for landscaping purposes in stone collection sites, and the Defendant specified the subject of the collection disposition of Article 2-2 of the instant case as “twitbles containing asbestos transferred on September 14, 2015,” and this is defined as transferred rocks on September 14, 2015.

⑤ Both of the first and second rocks were released from CQuarrying and were stored in G incheon City.4) The Plaintiff asserted that the first and second rocks were not “asbestos content products.” However, as a result of the fourth composition test, all asbestos was detected from the first rocks. There is no circumstance to deem that the second rocks were or were removed from the first rocks at the place where the second rocks were removed and the second rocks were stored, and that the second rocks were or were removed from a place clearly different from the first rocks.

3) Regarding the first and second dispositions of this case, where asbestos or asbestos-containing products are manufactured, imported, transferred, provided, or used in violation of Article 8(1) of the Asbestos Safety Control Act, the subject of the prohibition of sale is limited to "the product in question" manufactured, imported, transferred, provided, or used. In addition, the first and second dispositions of this case include "the product in question" as "the product in question" and "the product in question." However, the "C Quarrying" is merely merely merely a trade name, and it is unclear whether the product is specific because it is not specific due to lot numbers or drawings, and it is not clear that the scope of the area is not clear." In addition, it cannot be seen that "the prohibition of sale of asbestos in question" is clearly defined as "the product in question". Article 8(3) of the Asbestos Safety Control Act does not order "the prohibition of sale of asbestos in question" beyond the "the prohibition of sale" of asbestos in question. Therefore, the defendant's order to prohibit the sale of asbestos in question.

3. Conclusion

Therefore, among the plaintiff's claims, the plaintiff's claims concerning the prohibition of transfer Nos. 1 and 2 of this case are justified, and the remaining claims are dismissed as they are without merit. Since the cancellation of the recovery disposition of this case No. 2-2 of the judgment of the court of first instance is unfair, the plaintiff's claims corresponding thereto are revoked, and the remaining parts are justified with the conclusion. Thus, the plaintiff's appeal and the defendant's remaining appeals are dismissed as they are without merit. It