[1] Whether Article 24(2) of the Water Supply and Waterworks Installation Act, which provides that a new waterworks user shall succeed to the obligation of the existing waterworks user to pay delinquent water rates, is null and void as it goes beyond the delegation scope of the "other terms and conditions of the supply of tap water" under Article 38(1) of the Water Supply and Waterworks Installation Act (affirmative)

[2] The case holding that in a case where Gap company, which purchased "Teocheon Sports Culture Center," the vice-market, imposes a delinquent water supply and drainage fee on Eul company, based on Article 24 (2) of the "Teocheon-si Water Supply Ordinance", the disposition of imposition is unlawful

[1] In principle, the supply of water is based on a contract for the supply of water, and only the parties to the contract become the parties to the contract with respect to the payment of the water rates. Therefore, the succession to the obligation of the new user to pay the water rates violates the principle of individual responsibility. The interpretation of the language of Article 68(1) of the Water Supply and Waterworks Installation Act provides that a person who has not received direct supply of tap water shall not be the person liable for payment. It does not constitute a matter that needs separate regulations in accordance with the local circumstances. The succession to the obligation of the new user to pay the water rates is highly likely to be null and void because the provisions of Article 6(2)1 of the Act on the Regulation of Terms and Conditions for the Regulation of Terms and Conditions for the supply of water unfairly unfavorable to the customers. It is reasonable for the existing user to unilaterally collect the existing water rates from the existing user through a separate legal procedure for the user to whom the new water user has already been delegated the obligation to pay the water rates to the existing user, and it is difficult for the existing user to unilaterally provide the new water rate to the new user beyond the terms and conditions of the existing water supply.

[2] In a case where Gap company Eul company, which purchased "Teocheon Sports Culture Center" and Eul company, prior to acquiring the ownership of the sports center, imposed unpaid water supply and sewerage charges on Eul company, based on Article 24 (2) of the Ordinance on the Water Supply and Waterworks of Bupyeong-si, the case holding that Article 24 (2) of the above Ordinance, which provides that the new water user who did not receive tap water succeeds to the obligation of the existing water user to pay delinquent water charges, is in violation of the law and thus null and void because it goes beyond the delegation scope of Article 38 (1) of the Water Supply and Waterworks Installation Act, and thus, the disposition of imposition based on

[1] Article 117(1) of the Constitution of the Republic of Korea; Articles 22, 136, and 139(1) of the Local Autonomy Act; Articles 38(1) and 68(1) of the Water Supply and Waterworks Installation Act / [2] Article 117(1) of the Constitution of the Republic of Korea; Articles 22, 136, and 139(1) of the Local Autonomy Act; Articles 38(1) and 68(1) of the Water Supply and Waterworks Installation Act

[1] Supreme Court Decision 92Da16669 delivered on December 24, 1992 (Gong1993Sang, 591) Supreme Court Decision 92Nu17211 delivered on May 11, 1993 (Gong193Ha, 1731)

Seoul High Court Decision 200Na14888 delivered on August 1, 200

Busan Mayor (Attorney Shin-soo, Counsel for the plaintiff-appellant)

Incheon District Court Decision 2010Guhap331 Decided August 26, 2010

March 24, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

3. Disposition 1 of the first instance judgment was modified as follows by the reduction of claims in the trial.

The imposition of each "amount for which cancellation is sought" stated in the separate sheet (1) and (2) of the imposition of each water supply and sewerage charge stated in the separate sheet (1) and (2) against the plaintiff shall be revoked.

1. Purport of claim

The same is as the amended part of the main text of paragraph (3) of this Article (the plaintiff reduced the purport of the claim in the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

A. On August 28, 2009, the Plaintiff (the Plaintiff’s trade name was Taesung T&A, which was changed to the current trade name on December 3, 2009) purchased from the Korea Asset Trust to the Seocheon-si, Seocheon-si (hereinafter “Sacheon-si”) Additional Sports Culture Center (hereinafter “the instant sports center”) in the name of the Plaintiff on October 26, 2009, and completed the registration of ownership transfer in the name of the Plaintiff on October 26, 2009 (the Korea Asset Trust, the seller of the instant sports center, is a Doland Co., Ltd., and the actual owner of the said sports center is the Doland Co., Ltd.). On the other hand, Island Co., Ltd was changed to Tacheon-si Co., Ltd. as of the present date; hereinafter “Tong-si”).

B. Based on Article 24(2) of the House-si Water Supply Ordinance (hereinafter “Water Supply Ordinance”), the Defendant imposed, prior to acquiring the ownership of the sports center of this case, the Plaintiff, who is a new waterworks user, in arrears with other existing waterworks users; ① from July 2009 to November 2009, the Defendant imposed the water supply and drainage fee as stated in the attached Table (1); ② from January 2009 to November 2009, the Defendant imposed the water supply and drainage fee related to groundwater in the sports center of this case as stated in the attached Table (2) (hereinafter “instant disposition”).

C. On October 25, 2009, before the Plaintiff purchased the instant sports center and completed the registration of transfer of ownership under the name of the Plaintiff on October 26, 2009, the water supply and sewerage charges used by the existing water user by October 25, 2009 are as the amount in the column for each “the amount for which cancellation is sought” stated in the separate sheet among the disposition of imposition of the water supply and sewerage charges listed in the separate sheet.

[Reasons for Recognition] The facts without dispute, Gap evidence 1-2, Gap evidence 2, 3, Gap evidence 10-2 through 5, Gap evidence 11-1 through 44, and the purport of the whole pleadings

2. Scope of judgment

The defendant imposed water supply and sewerage charges on the plaintiff on the grounds of Article 24 (2) of the Water Supply Ordinance, which is a provision on the imposition of water supply fees pursuant to Article 24 (2) of the Water Supply Ordinance, which provides that "Except as otherwise provided for in this Ordinance, the cases of the Local Tax Act and the Water Supply Ordinance shall apply to the imposition, collection, etc. of water supply fees." Thus, if Article 24 (2) of the Water Supply Ordinance is illegal, Article 24 of the Water Supply Ordinance is also illegal as a matter of course, and therefore, Article 24 (2) of the Water Supply Ordinance is only determined.

First of all, Article 24(2) of the waterworks Ordinance stipulates that a new waterworks user shall settle the water rate with the existing waterworks user, and therefore, the new waterworks user cannot be a ground provision for succeeding to the existing waterworks user's delinquent water rate. Thus, the above provision is reasonable to interpret that a new waterworks user shall succeed to the existing waterworks user's delinquent water rate if the rights and obligations with respect to the water supply facilities are changed, and that the new waterworks user shall succeed to the existing waterworks rate, but the above argument by the Plaintiff is rejected.

Next, even if Article 24(2) of the Water Supply and Waterworks Installation Act is interpreted as succeeding to delinquent water rates of the existing waterworks user, the above provision asserts that the said provision is invalid because it imposes a new waterworks user a duty on matters not delegated by the Act or goes beyond the scope delegated by the Act. In other words, the obligation to pay water rates is reasonable to impose a duty on a person who actually uses it. Therefore, the statutory delegation under the proviso of Article 22 of the Local Autonomy Act is required to impose a duty to pay the charges on a person other than the user. The "the provisions on the cost-bearing of construction works for the water supply facilities, and other terms and conditions of the supply of tap water" under Article 38(1) of the Water Supply and Waterworks Installation Act, which is the relevant provision, is interpreted as a provision on the premise that only the person who receives the water of tap water, is liable to pay the delinquent water rates of the existing waterworks user. Thus, the provisions of the Ordinance that the new waterworks user who did not receive the supply of tap water, which

On the other hand, the defendant asserts that even if the collection of the water use fee falls under the "matters subject to the obligation to pay" under the proviso of Article 22 of the Local Autonomy Act, in light of the following: (i) if there is a delinquent water use fee, it is clear that the actual user will be liable for the payment if there is a decrease in the revenue of local finance; and (ii) there is administrative reasonable need to recognize the succession of the obligation to pay the water use fee to the new water user even for the expansion of local finance; and (iii) according to Article 38(1) of the Water Supply and Waterworks Installation Act, which stipulates the "other provisions on the terms and conditions of supply of tap water" as municipal ordinance, it can be interpreted that the scope of the person liable for the payment of the water use fee can be prescribed by municipal ordinance.

3. Determination as to the invalidity of the Ordinance on Waterworks

(a) the relevant statutes and ordinances;

Article 117(1) of the Constitution provides that "Local governments shall handle affairs concerning the welfare of residents and manage property, and may enact regulations concerning autonomy within the scope of statutes." Article 22 of the Local Autonomy Act provides that "Local governments may enact municipal ordinances concerning their affairs within the scope of statutes: Provided, That in cases where matters concerning the restriction on the rights of residents or the imposition of obligations on residents or penal provisions are prescribed, they shall be delegated by Acts and subordinate statutes." Article 136 of the Constitution provides that "Local governments may collect user fees for the use of public facilities or the use of property, and Article 139(1) provides that "the matters concerning the collection of user fees, fees or contributions shall be prescribed by municipal ordinances."

Article 38(1) of the Water Supply and Waterworks Installation Act provides, “(i) A general waterworks business operator shall obtain approval from an authorizing agency by prescribing the terms and conditions of the charge for tap water, construction works for water supply facilities, and supply of tap water, as prescribed by Presidential Decree, and other terms and conditions of the supply of tap water: Provided, That where a waterworks business operator is a local government, such

In Article 24 of the waterworks Ordinance, the rights and obligations with respect to water supply facilities shall be incidental to the disposal of the building or the land in which the relevant water supply facilities are installed. (2) In cases where the rights and obligations with respect to water supply facilities are changed, the new water user and the existing water user shall settle the fees. Provided, That this shall not apply to the change of the name following an auction or a public sale.

B. Organization of issues

The main issue of this case is whether the provisions of Article 22, Article 136, Article 139(1) of the Local Autonomy Act, and Article 38(1) of the Water Supply and Waterworks Installation Act are applicable to the usage fees of the waterworks business (see Article 9 subparag. 4(i) of the Local Autonomy Act) falling under the inherent affairs of the local government, and where the rights and obligations with respect to the water supply facilities are changed, the new water user succeeds to the delinquent water rates of the existing water supply users, but the defendant's provision of Article 24 of the Water Supply and Waterworks Installation Act, which stipulates internal settlement for this purpose, falls under the delegation scope of Article 38(1) of the Water Supply and Waterworks Installation Act, which is the mother corporation, and is valid or is null and void

C. Relevant legal principles

(1) Supreme Court Decision 92Da16669 delivered on December 24, 1992 held that "the term "electric rates and other terms of supply" refers to the terms and conditions of the power supply contract for the supply of electricity from the general electricity business operator to the supplier or the user of the electricity, i.e., the method of the supplier of the electricity to the supplier or the user of the electricity to supply the electricity in the future, i.e., the method of the supplier of the electricity, and the fees and other matters to be borne by the supplier or the user in relation thereto, and the matters concerning the succession of the former's obligation to pay the electricity in arrears are not matters concerning the new acceptance of the liabilities to the Korea Electric Power Corporation of the former buyer, and therefore, these matters are not included in "electric rates and other terms of supply".

(2) Supreme Court Decision 92Nu17211 Decided May 11, 1993 ruled that "Article 5 of the Seoul Special Metropolitan City Water Supply and Waterworks Installation Act (amended by Ordinance No. 2944 of July 22, 1992) enacted by the provisions of Article 17 of the former Water Supply and Waterworks Installation Act (amended by Ordinance No. 2944 of July 22, 1992) provides that "the water supply system shall be attached to the building installed or the disposal, and the acquisitor shall succeed to the obligation arising before the acquisition of the water supply system by this Ordinance." The above provision provides that "the former owner's obligation to pay the water supply system shall not be succeeded to the new owner's obligation to pay the water supply system.

D. Determination

(1) Even if the Act comprehensively delegates matters concerning the rights and obligations of residents to a municipal ordinance without specifying any specific scope, unlike administrative agencies’ orders, as long as the municipal ordinance is the autonomous corporation of a local government, which is established by the resolution of the local council, which is the representative body of residents, unlike administrative agencies’ orders, local governments may enact by municipal ordinance the matters concerning the rights and obligations of residents to the extent that it does not violate the statutes (see Supreme Court Decision 90Nu6613, Aug. 27,

(2) Although the municipal ordinance of a local government constitutes a municipal ordinance that falls under the autonomous affairs of a local government, it shall not be effective to enact the municipal ordinance that violates the municipal ordinance only to the extent that it does not violate the statutes. However, even if the statutes governing certain matters regulated by the municipal ordinance already exist, the municipal ordinance is intended to regulate them in accordance with the municipal ordinance separately, and there is no intention that the municipal ordinance may interfere with the purpose and effect of the municipal ordinance in its application, or even if both have started for the same purpose, the municipal ordinance of the State must not be deemed to violate the municipal ordinance of the State, if it is interpreted to allow each local government to regulate the same contents uniformly throughout the country and separately in accordance with the local circumstances (see Supreme Court Decision 2006Do52, Dec. 13, 2007, etc.).

(3) Article 136 of the Local Autonomy Act comprehensively delegates to local governments that the collection of usage fees may be prescribed by municipal ordinances. Article 139(1) of the Local Autonomy Act provides that matters concerning the collection of usage fees shall be prescribed by municipal ordinances. Article 38(1) of the Water Supply and Waterworks Installation Act provides that “the charges for water works, the cost of construction works concerning water supply facilities and other terms and conditions for the supply of tap water” shall be prescribed by municipal ordinances of local governments. Thus, if the water municipal ordinances are included within the scope of “other terms and conditions for the supply of tap water” under Article 38(1) of the Water Supply and Waterworks Installation Act, it shall be deemed that the provisions under statutory delegation shall be effective, and if it exceeds the scope of “other provisions concerning the terms and conditions for the supply of tap water”

(4) Accordingly, whether Article 24(2) of the Water Supply and Waterworks Installation Act is null and void is included in the scope of “other tap water supply conditions” under Article 38(1) of the Water Supply and Waterworks Installation Act, which provides for the succession of the obligation of a new waterworks user to pay delinquent water charges, where the rights and obligations with respect to water supply facilities are changed, the new waterworks user and the existing waterworks user shall settle the charges. Provided, That this shall not apply to the change of the name following an auction or a public sale.”

(5) The following circumstances, which are acknowledged as a whole in light of the aforementioned legal principles and the whole purport of the arguments, namely, ① the parties to a contract with respect to the supply of tap water shall be entitled to the rights and obligations of the new user, barring special circumstances. The succession of the liability of the new user for the payment of the water rate violates the separate principle of liability, ② the provisions of Article 68(1) of the Water Supply and Waterworks Installation Act (the waterworks business operator, which is a local government, may collect the fees for tap water, the construction of the water supply facilities, or the charges borne by the local government under Article 71, can be deemed as not the obligor for the payment of local taxes, ③ The provisions of the former Enforcement Decree of the Water Supply and Waterworks Installation Act and the Enforcement Rule of the Water Supply and Waterworks Installation Act concerning the new user for the supply of the existing water rate are not the one for the new user, and the new user for the supply of the water rate shall not be deemed to be unreasonable for the reason that the new user cannot succeed to the liability of the new user for the payment of the water rate to the new user.

(6) Therefore, Article 24(2) of the Water Supply and Waterworks Installation Act which provides that a new waterworks user who did not receive tap water shall succeed to the obligation of the existing waterworks user to pay delinquent water rates is null and void in violation of the Act as it goes beyond the delegation scope of the “other provisions on the terms and conditions of supply of tap water” under Article 38(1) of the Water Supply and Waterworks Installation Act. The instant disposition taken based on Article 24(2) of the Water Supply and Waterworks

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed (However, the decision of the court of first instance was modified as the decision of this case 3) and it is so decided as per Disposition.

[Attachment] List (1) (2): omitted

On the same day as judge Lee Jong-dae (Presiding Judge)