[1] The elements to punish a violation of Article 66 subparag. 13 of the Wastes Control Act, recognizing that the waste disposal facility did not meet the management standards and caused contamination of its surrounding environment

[2] Whether the subject of a violation of Article 66 subparag. 13 and Article 31(1) of the Wastes Control Act is limited to “the person who installs and operates waste disposal facilities” (affirmative)

[3] The purport of the joint penal provisions of Article 67 of the Wastes Control Act and whether the joint penal provisions are the grounds for punishment against the persons who are not the installers and operators of waste disposal facilities and actually perform such duties (affirmative)

[1] In order to punish a violation of Article 66 subparag. 13 of the Wastes Control Act by maintaining and managing waste disposal facilities in breach of the standards for management of waste disposal facilities, the act of maintaining and managing waste disposal facilities in violation of the standards for management of waste disposal facilities must reach the extent that pollutants under the environmental law such as the Framework Act on Environmental Policy are discharged or damaged human health or the environment.

[2] Article 29(2) of the Wastes Control Act provides that “A person, other than a person who has obtained permission for a waste disposal business under Article 25(3) or intends to install waste disposal facilities, shall obtain approval from the Minister of Environment.” Article 31(1) of the same Act provides that “a person who installs and operates a waste disposal facility shall maintain and manage the facility in accordance with the management standards set by Ordinance of the Ministry of Environment.” Article 66 Subparag. 13 of the same Act provides that “a person who installs and operates the waste disposal facility shall maintain and manage the facility in accordance with the management standards set by Ordinance of the Ministry of Environment.” Article 66 Subparag. 13 of the same Act provides that “a person who causes contamination of the surrounding environment by maintaining and managing waste disposal facilities not in compliance with the management standards set forth in Article 31(1) of the Wastes Control Act.” Accordingly, the subject of a violation under Articles 66 subparag. 13 and

[3] Article 67 of the Wastes Control Act provides, “If a representative of a corporation, or an agent, employee, or other servant of the corporation or an individual commits an offence under any of Articles 63 through 66 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine under the relevant provision.” The purport of the provision is to expand the applicable person to the person who actually executes the relevant business in order to ensure the effectiveness of the penal provision when there is a person who actually executes the relevant business. Such joint penal provision is a basis for the punishment of the person who actually executes the relevant business.

[1] Articles 31(1) and 66 subparag. 13 of the Wastes Control Act / [2] Articles 29(2), 31(1), and 66 subparag. 13 of the Wastes Control Act / [3] Articles 66 and 67 of the Wastes Control Act

[1] Supreme Court Decision 2004Do4150 Decided December 8, 2005 (Gong2006Sang, 131), Supreme Court Decision 2007Do5372 Decided February 12, 2009 / [3] Supreme Court Decision 2007Do8401 Decided December 28, 2007 (Gong2008Sang, 192)

Defendant 1 and two others

Defendants

Daegu District Court Decision 2016No4564 decided April 26, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of legal principle as to the "pollution of surrounding environment" under Article 66 subparagraph 13 of the Wastes Control Act

A. To punish a violation of Article 66 subparag. 13 of the Wastes Control Act by maintaining and managing waste disposal facilities not in compliance with the standards for the management of waste disposal facilities, the act of maintaining and managing waste disposal facilities in violation of the standards for the management of waste disposal facilities must reach the extent that pollutants prescribed by the environmental-related Acts and subordinate statutes, such as the Framework Act on Environmental Policy, are discharged or that such act causes harm to human health or the environment (see, e.g., Supreme Court Decisions 2004Do4150, Dec. 8, 2005; 2007Do5372, Feb. 12, 2009).

B. The lower court determined that, for the following reasons, the groundwater contamination constituted a pollution of the surrounding environment under Article 66 subparag. 13 of the Wastes Control Act, even if pollutants have not been detected at the inspection well of groundwater (a facility that can confirm whether groundwater has been polluted by an inspection well and a reclamation for wastes) due to the contamination of soil and groundwater around the reclamation site (a facility that collects groundwater flowing around a landfill and prevents groundwater from flowing into a landfill facility).

(1) In order to prevent the phenomenon in which water from being flown into soil or underground water or through which water is flown out, the waste reclamation site shall install a spart of water with a sparting material, and install a spart of groundwater below the spart. It can be seen as to whether groundwater has been polluted by water leakage or damage caused by a landfill facility through whether the spart of groundwater has been contaminated.

(2) At the time of the instant case, the instant construction works for the maintenance of the floor and slopes in the landfill, which were installed in the area subject to maintenance, was in the state of walking the string of the string.

(3) As the buried water did not collapse, the water was leaked to the lower part of the landfill site through the ground on which there was no difference in water, and the drained water, along with the groundwater, was leaked to the excluding part of the groundwater, and was detected with pollutants exceeding the permissible level in the excluding part of the groundwater.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court’s determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on pollution

2. misunderstanding of the legal principles as to “a person who installs and operates waste disposal facilities” under Article 31(1) of the Wastes Control Act

A. Article 29(2) of the Wastes Control Act provides that “A person, other than a person who has obtained permission for a waste disposal business under Article 25(3) or intends to obtain approval from the Minister of Environment, intends to install waste disposal facilities shall be required to distinguish between a waste disposal business entity and an installer and operator of a waste disposal facility.” Article 31(1) of the same Act provides that “a person who installs and operates a waste disposal facility shall maintain and manage the facility in accordance with the management standards set by Ordinance of the Ministry of Environment.” The person who installs and operates the waste disposal facility imposes an obligation to maintain and manage the facility in compliance with the management standards set by Ordinance of the Ministry of Environment.” Article 66 Subparag. 13 of the same Act provides that “a person who maintains and manages the waste disposal facility in breach of the management standards set forth in Article 31(1) and causes contamination of the surrounding environment.” Therefore, the subject of a violation of Article 66 subparag. 13 and Article 3

Meanwhile, Article 67 of the Wastes Control Act provides, “If a representative of a corporation, or an agent, employee, or other servant of the corporation or an individual commits an offence under any of Articles 63 through 66 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual shall be punished by a fine under the relevant provision.” The purport of the provision is to expand the applicable person to the person who actually executes the relevant business in order to ensure the effectiveness of the penal provision when there is a person who actually performs the relevant business (see Supreme Court Decision 2007Do8401, Dec. 28, 2007). Such joint penal provision is a basis for the punishment of the person who actually performs the relevant business (see Supreme Court Decision 2007Do8401, Dec. 28, 2007).

B. The lower court acknowledged that Defendant 3 was a senior executive director of Defendant 2, who was in charge of administration, operation, and management, but deemed that “a person who installed and operates waste disposal facilities” under Article 31(1) of the Wastes Control Act refers to a person who actually installed or operated waste disposal facilities, and accordingly, omitted Article 67 of the Wastes Control Act, which is a joint penal provision that falls under the penal provisions for the above Defendant, and applied only Articles 66 subparag. 13 and 31(1) of the Wastes Control Act.

C. The lower court erred by misapprehending the legal doctrine on the person who installs and operates waste disposal facilities under Articles 66 subparag. 13 and 31(1) of the Wastes Control Act and joint penal provisions.

However, Defendant 3’s direct violation of Articles 66 subparag. 13 and 31(1) of the Wastes Control Act, not “the person who installs and operates waste disposal facilities,” but “offenders” as prescribed by the joint penal provisions, and the criminal facts found guilty are the same. In addition, as the statutory penalty for fines against the remaining applicable provisions of law or the above Defendant is identical, it is difficult to deem that the lower court erred by misapprehending the legal doctrine and by erroneously applying the law as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment. Accordingly, this part of the grounds of appeal is rejected.

3. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)