(영문) 대법원 2016.5.12.선고 2012두15838 판결

1. The lower court determined that the Defendant’s rejection of the Plaintiff’s waste recycling report on the ground that the Defendant’s instant farm constitutes an area where the distance from the F Village E located in 46 households does not exceed 500 meters and constitutes an area where livestock breeding is restricted pursuant to Article 3(3) of the Ordinance on the Restriction on Livestock Raising of Mountainous-gun (hereinafter “instant Ordinance”), and that the Plaintiff’s waste recycling report is invalid on the ground that the Plaintiff’s waste recycling report constitutes an area where livestock breeding is restricted pursuant to Article 3(3) of the said Ordinance, on the ground that Article 3(3) of the instant Ordinance exceeds the scope delegated by the former Act on the Management and Use of Livestock Excreta (amended by Act No. 10893, Jul. 21, 201; hereinafter “the Livestock Excreta Act”). Accordingly, the Plaintiff’s waste recycling report cannot be returned pursuant to the said Ordinance.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. In cases where a statute delegates a certain matter to a municipal ordinance, determination as to whether the municipal ordinance complies with the limits of delegation shall also be made by comprehensively examining the legislative purpose and content of the relevant statutory provision, structure of the provision, and relationship with other provisions. Even though the text of the delegation provision clearly states the scope of delegation by using terms with which the meaning can be clearly known, it goes beyond the limits of the meaning, and whether it may be deemed that a new legislation has been made beyond the scope of delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see, e.g., Supreme Court Decision 2010Du25077, Oct. 25, 2012).

B. Article 8(1) of the Livestock Excreta Act provides that "the head of a Si/Gun/Gu may designate a specific area and restrict livestock raising in any of the following areas, as prescribed by municipal ordinances of the relevant local government, in order to preserve the living environment of local residents or preserve the water quality of water sources." The head of the relevant Si/Gun/Gu provides that "the head of the relevant Si/Gun/Gu may designate a specific area and place restrictions on livestock raising as prescribed by municipal ordinances of the relevant local government," and each subparagraph provides that "area in need of the protection of the living environment as a residential densely-populated area (subparagraph 1), water-source protection area under Article 5 of the Water Supply and Waterworks Installation Act, special measures area under Article 22 of the Framework Act on Environmental Policy

In accordance with the delegation of Article 8 of the Livestock Excreta Act, the term "area subject to restriction on livestock raising" in Article 2 refers to an area where the whole or part of livestock raising is restricted (Article 3), and the term "side housing" means a house in which at least 10 households reside in village formation (Article 4). Article 3 divides the restricted area on livestock raising into an absolute restricted area (Article 1) and a relative restricted area (Article 3), the absolute restricted area is determined as a village district among residential areas, commercial areas, industrial areas, and green areas, and green areas, and the upper restricted area is defined as any of the following areas outside the absolute restricted area. In such cases, Article 4 (1) and (2) of the Ordinance provides that "in the case of new construction of livestock and the relative restricted area on livestock breeding, it shall be the nearest straight line between the boundary of the site of livestock breeding facilities in neighboring houses or public use facilities," and Article 4 (2) of the Ordinance provides that "in the case of new construction of livestock and the relative restricted area on livestock breeding, etc.

C. As can be seen, Article 8(1) of the Livestock Excreta Act provides for the purpose of entrusting matters concerning the designation of a certain zone and the restriction of livestock raising in such zone to the ordinances of local governments. The above provision provides for the designation of a zone where the preservation of water quality is required, such as an area requiring the protection of a living environment in a residential densely-populated area, a water source protection area, and an area exceeding the environmental standards, etc. for the purpose of preserving the living environment or preserving the quality of water sources. The details of the criteria for the designation of a zone where livestock raising is restricted are recognized as the need to be regulated in accordance with the special and technical determination and policy consideration of each local government in compliance with the actual condition of each local government, and the head of each Si/Gun/Gu shall set specific standards for the designation of a zone where livestock raising is restricted by ordinances by using the abstract concept such as "area where the protection of the living environment of local residents is required" and "area where the living environment needs to be protected as a concentrated residential area"

Accordingly, Articles 2 subparag. 4 and 3(3) of the Ordinance of this case stipulate the meaning and effect of a zone subject to restriction on raising livestock in exceptional cases when restricting the raising of livestock in the counter-restricted area under Articles 4(1) and 4(2) of the Ordinance as the relative restriction area from the borderline of neighboring housing where ten or more households live in the area outside the absolute restriction area is located within a certain distance by type of livestock.

Considering the legislative intent of Article 8(1) of the Livestock Excreta Act and the purpose of this Ordinance, the contents and structure thereof, etc. comprehensively, prescribing an area within a certain distance from the borderline of neighboring housing where ten or more households live in a village creation as a relative restriction zone for each type of livestock, in light of the distance necessary for the protection of the household size and living environment, etc., it can be deemed that the "area requiring the protection of living environment in a residential densely-populated area" under Article 8(1)1 of the Livestock Excreta Act was embodied within its meaning. Thus, it cannot be deemed that the purpose and object of the designation of a restricted zone for raising livestock under Article 8(1) of the Livestock Excreta Act are consistent with the purpose and object of the designation of the restricted zone for raising livestock under Article 8(

D. Nevertheless, the lower court determined otherwise to the effect that Article 3(3) of the instant Ordinance imposes a restriction on livestock raising more wide than that prescribed by the Livestock Excreta Act, and thus becomes null and void. In so doing, it erred by misapprehending the legal doctrine on the scope and limit of delegation to municipal ordinances.

3. Meanwhile, the Framework Act on the Regulation of Land Use defines a group of land subject to restrictions on the use and preservation of land as zones, districts, and zones, zones, complexes, urban/Gun planning facilities, regardless of names, such as restrictions on development activities, or obtaining authorization, permission, etc. related to land use, as zones, zones, etc. (Article 2 subparag. 1) and Article 8 of the Livestock Excreta Act.

In cases where there are provisions different from Article 8 of the Framework Act on the Regulation of Land Use concerning the designation, operation, etc. of areas, districts, etc. (attached Table related to Article 5 subparagraph 1) and Article 8 of the Framework Act on the Regulation of Land Use, where the head of a local government designates an area, district, etc., he/she shall prepare a topographic map and announce it in the official gazette of the local government (main sentence of Article 8 (2)), but in cases prescribed by Presidential Decree, he/she may not prepare and announce a topographic map or prepare and publicly announce a map that indicates an area, district, etc. in the cadastral map (proviso to Article 8 (2)) and Article 8 (2).

The effect of the designation of an area, district, etc. where a drawing clarifying the area, district, etc. is to be announced on a topographic map, cadastral map, etc. shall take effect upon the announcement of the above topographic map

(The main sentence of Paragraph 3 of Article 8)

Therefore, the lower court should point out that the instant farm was designated as a restricted area for raising livestock under the instant Ordinance, as stipulated in the Framework Act on the Regulation of Land Use after remanding.

4. Therefore, 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.