(영문) 서울고등법원 2015.1.15. 선고 2014누1637 판결

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the cancellation shall be dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The Defendant’s disposition of imposition of KRW 125,621,790 on September 30, 2009 against the Plaintiff was revoked (the portion exceeding KRW 124,632,40 on the part of KRW 125,621,790 on the part of the Plaintiff’s share of KRW 125,621,790 on the part of the Plaintiff’s share of KRW 124,632,40 on the part of the Plaintiff’s share of KRW 125,6

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A) From September 2007, the Plaintiff promoted a housing redevelopment project by having the land size of 144 square meters in Seodaemun-gu, Seoul, Seo-gu, Seoul as a project implementation district. In the process of implementing the said project, the Plaintiff had a general architect office of Hyed Engineering (hereinafter referred to as “Hydd Engineering”) investigate the ground of the project implementation district representative in order to grasp the structure of the strato, geological structure, and soil of the strato, and from November 20, 2008 to December 5, 2008, A (B) who was awarded a contract from the Hyd Engineering to the project implementation district, conducted a drilling survey at the large scale of the project implementation district from November 20, 2008 to December 2 of the same year.

B) On March 30, 2009, the Defendant discovered the fact that water leakages occurred due to the destruction of water supply managers laid 1.5 meters underground of the roads 117-11, Dongdaemun-gu, Seoul (hereinafter referred to as the “instant damaged site”) located at a point 1.5 meters underground (hereinafter referred to as the “instant damage”), and on the ground that the damage of this case and the leakages therefrom occurred due to A’s drilling investigation, the Defendant issued a disposition on September 30, 201 to the Plaintiff, the main owner of the housing redevelopment project, before being amended by Act No. 10272, May 25, 2010; hereinafter referred to as the “Water Supply and Waterworks Installation Act”), Article 72(1), (2), and 71(2) of the former Water Supply and Waterworks Installation Act, Article 65(3) through (6) of the Enforcement Decree of the Water Supply and Waterworks Installation Act, Article 80(2) of the former Ordinance on the Collection of Water Supply and Waterworks Charges, etc.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, Eul evidence No. 1 (including additional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) There is no fact that the Plaintiff or A did not destroy the water supply pipe. Even if the water supply pipe was damaged by A, the liability for the damage of this case is only borne by Had Engineering or A, the contractor, who is responsible for the drilling investigation, and the Plaintiff is not the subject to the charge for the damage.

2) Even if the Plaintiff is the subject to the charge for the damage resulting from the instant damage, the amount equivalent to the charge for tap water that was leaked or unusable due to the damage, etc. to the “water supply facilities” (hereinafter referred to as the “duplicative amount”) shall also be included in the charge for the damage, and Article 65(5)1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act and Article 3(2)3 of the Ordinance on Collection shall be deemed null and void since it exceeds the delegation scope of the Water Supply and Waterworks Installation Act. Therefore, the portion that included the water leakage amount in the instant disposition, namely, the portion that exceeds the restoration construction cost of KRW 989,390, is null and void, and is unlawful,

3) Even if Article 65(5)1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act and Article 3(2)3 of the Ordinance on Collection did not go beyond the scope of delegation of the Water Supply and Waterworks Installation Act, it is unreasonable to impose all of the amount on the Plaintiff, even though the Defendant presumed that the water leakage amount was not based on accurate data and the water leakage date to calculate the water leakage amount, and it was presumed that the Defendant neglected to inspect the water supply center, and that the water leakage amount (the remainder excluding the recovery construction cost) was unfairly increased, it is unreasonable to impose on

B. Relevant statutes

It is as shown in the attached Table related statutes.

C. Determination

1) As to the assertion that there is no damage or the person liable for the damage is not the person liable for the damage

A) Comprehensively taking account of the following circumstances acknowledged by Gap’s evidence Nos. 2 through 4, Eul’s evidence Nos. 1 through 4, 6 through 10, and 12 (including various numbers), and the testimony of the witness C of the court below as a whole, it can be acknowledged that the damage of this case occurred in the course of conducting drilling investigation by using the organization called “Bitcocos” (hereinafter “intestcos”) in the process of performing drilling investigation.

① In relation to the ground investigation of the project implementation district, HD Engineering, which was contracted by the Plaintiff, has been awarded a contract again to A to conduct a drilling investigation of 83 copies, and the site of the instant damage shall be located adjacent to one of the said 83 drillings at a distance of 2 meters.

2. A, upon being under investigation by police due to suspicion of violating the Water Supply and Waterworks Installation Act, stated that “A was not a company engaged in geological research in the vicinity of the damaged site.”

③ The damage of this case is not caused by a single shock, which is accompanied by natural corrosion or removal work, but rather caused by contact with water supply pipes in progress, which were predicted by the last day of the apparatus such as Bitcocoin. It is in fact consistent with the form of the part of the damage in the stage of the water supply pipes claimed by the Defendant around August 2008 and the end of the part in the stage of the drilling at the time of the drilling investigation, which appears to have been used at the time of the drilling investigation. Meanwhile, A asserts to the effect that the surface of this Part at the time of the examination of the witness was not collected from water supply pipes at the time of the examination of the witness on the ground that the surface of the above Part at the time of the examination of the witness shows a difference in color, etc., on the ground that it was not taken from water pipes at the time of the first discovery at the time of the examination of the witness, but the difference in color appears to have changed depending on water contact, and there is no other evidence supporting the above assertion.

④ On November 30, 2009, A was subject to a disposition that was suspected of violating the Water Supply and Waterworks Installation Act at the Seoul Western District Prosecutors’ Office, but this was not a reason to prove that A’s damage to water supply centers was insufficient, but there was no evidence to acknowledge the intention of damage and no provision to punish damage due to negligence.

B) A housing redevelopment project promoted by the Plaintiff is inevitably accompanied by the ground survey, etc. to grasp the geological structure prior to the removal of the existing building in the project district and the new construction of the building, and such removal work or the ground survey, etc. Therefore, with respect to the damage of water supply facilities generated in the course of the ground survey, the Plaintiff is liable to compensate for damage under Article 72 of the Water Supply and Waterworks Installation Act as the “person who carries on a project to destroy water supply facilities”. As such, the said drilling survey was subcontracted to another business and the person who actually carried on the act of damaging water supply is not different from that of the contractor (Article 5 of the Water Supply and Waterworks Installation Act, among the conditions for the approval for the housing redevelopment project agreement, that “the agreement on the implementation of the water supply system” (Article 5 of the Water Supply and Waterworks Development Project Act) provides that “When water leakage occurs within the existing housing redevelopment project complex due to the shock or the delay in the removal of the existing water supply center, it shall be immediately paid the expenses incurred thereby.” Therefore, the Plaintiff did not have any direct obligation to pay the damages.

2) As to the assertion that the Enforcement Decree of the Water Supply and Waterworks Installation Act and the provisions of the Collection Ordinance that stipulate that the amount shall be imposed shall be invalid beyond the limit of the delegated legislation

If it is not clear whether the provisions of an enforcement decree or municipal ordinance conflict with the parent law, it shall not be declared as invalid in violation of the parent law if it is possible to interpret the provisions of the parent law by comprehensively taking into account other provisions of the parent law, the Enforcement Decree or municipal ordinance, legislative purport, and history thereof. Such a legal principle is based on the presumption principle that the conflict between the upper and lower rules should be excluded to the maximum extent as it forms a unification body. In addition, in a democratic law state, the rules in the democratic law state are based on the presumption principle that generally conforms to the upper and lower rules, and in real cases where the lower rules are declared as invalid because they are in conflict with the upper and lower rules, not only legal confusion and legal instability, but also legal gap and legal protection until new norms are enacted, so it is also necessary to avoid such harm (see, e.g., Supreme Court Decisions 200Du2716, Aug. 24, 2001; 201Du3257, Oct. 25, 2012).

Article 71(1) of the Water Supply and Waterworks Installation Act, which is a provision on the amount borne by charges, provides that "a waterworks business operator may have a person who has incurred expenses for the construction of waterworks (including a person who has caused the construction or extension, etc. of waterworks by installing many tap-water facilities, such as housing complexes and industrial facilities, etc.), or a person who has operated a business or conducts an act that causes damage to waterworks, bear all or part of expenses incurred in the construction of the waterworks, maintenance of the waterworks, or prevention of damage to the waterworks, and Paragraph (2) of the same Article provides that "the standards for calculation and collection of charges under paragraph (1) and other necessary matters shall be prescribed by Presidential Decree". In light of the form, details and purport of the provision, the charges imposed on a business or act that causes damage to waterworks under Article 71(1) of the Water Supply and Waterworks Installation Act shall be construed as "the whole or part of expenses incurred

However, Article 65(5)1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act, upon delegation of Article 71(2) of the Water Supply and Waterworks Installation Act, provides that "the amount equivalent to the fees for tap water that has leaked or become unusable due to the damage, etc. to water services facilities" as one of the charges imposed on a person who carries out a project or an act that damages water services facilities. In addition, Article 3(2)3 of the Enforcement Decree of the Water Supply and Waterworks Installation Act provides that "charges for the amount of tap water that has leaked or become unusable due to the damage, etc. to water services facilities (hereinafter referred to as "duplicating and withdrawing water") shall be the charges for the damage."

As can be seen, it is reasonable to impose expenses incurred in maintaining and preventing damage to water services facilities on those who have caused damage. It is reasonable to impose such expenses on those who have caused damage to water services facilities. It is anticipated that the occurrence of tap water that has leaked or become unusable upon the damage to water services facilities occurs easily. As such, the waterworks business operator liable to supply tap water can facilitate the business of supplying water by facilitating the business of supplying water, such as collecting, purifying, and supplying additional water as much as tap water that has leaked or become unusable, and maintaining the whole water facilities that shall be preserved. Meanwhile, in light of the purport of Article 71(1) of the Water Supply and Waterworks Installation Act, the imposition of charges on the damaged water is discretionary inasmuch as the disposition of imposing charges on the damaged water is taken into account the specific cause of water leakage, water leakage period and quantity, the degree of intention or negligence of the damaged water manager on water leakage, the degree of intention or negligence by the waterworks business operator on the expansion of damage to water leakage, and the extent of illegality should not be avoided.

Considering the aforementioned subordinate legal interpretation principle consistent with the mother law of the above subordinate norm, the legislative intent of the provision on the charge for causing damage to waterworks, the form and content of the relevant provision, and the possibility of judicial control over the discretion to impose the charge for causing damage to the waterworks, etc., the “amount equivalent to the charge for using tap water that has become new or unusable due to the damage, etc. to the waterworks” under Article 65(5)1 of the Enforcement Decree of the Water Supply and Waterworks Installation Act and Article 3(2)3 of the Collection Ordinance can be interpreted as being included in the “expenses necessary for the maintenance of the waterworks” under Article 71(1) of the Water Supply and Waterworks Installation Act, so the provision of the above Enforcement Decree or municipal ordinance cannot be deemed null and void beyond the scope of the mother law (see Supreme Court Decision 2011Du6264, Jan. 16, 2014). Accordingly,

3) As to the assertion that the amount is excessive

As seen earlier, the disposition imposing charges on the damaged person is discretionary, and as such, a waterworks business operator shall take into account the specific cause of water leakage, the period and quantity of water leakage, the degree of intention or negligence by the damaged person on water leakage, the degree of intent or negligence by the waterworks business operator on the extension of water leakage damage, and the degree of intent or negligence by the waterworks business operator on the part of the damaged person on the water leakage damage, and shall bear the pertinent amount equivalent to the liability of the damaged person as

이 사건에 관하여 보건대, 갑 제18호증, 을 제11, 15호증의 각 영상 및 기재, 이 법원의 검증 결과, 변론 전체의 취지를 더하여 인정되는 다음과 같은 사정, 즉 ① 앞서 본 바와 같이 이 사건 손괴는 원고의 주택재개발사업의 일부인 지반조사(시추조사) 과정에서 발생된 것인 점, ② 주택재개발사업 승인협의조건 중 상수도 급수를 위한 협의 이행조건(을 제5호증)에 의하면 사업구역내의 기존 급·배수관 등 급수시설물은 원고가 우리수도사업소와 협의하여 유지·관리하도록 되어 있고, 기존 건물 철거 작업 시 충격 또는 기존 관 철거 폐쇄지연으로 사업시행단지 내에서 누수 발생 시 이에 따라 발생한 소요 공사비(손괴원인자 부담금)는 원고가 부담하도록 되어있는 점, ③ 피고가 유량감시 시스템을 통하여 중블럭 단위로 공급량을 실시간으로 분석하고, 일일 결산을 실시하여 이상 징후를 파악·조치하고 있기는 하나, 이 사건 손괴 현장이 위치해 있는 중산3 중블럭은 그 구역이 광범위하고, 재개발에 따른 거주민들의 이주 등이 있었던 관계로 피고로서는 유량 값의 변동을 이상 신호 내지 누수 발생 신호로 판단하기 어려웠을 것으로 보이고, 이 사건 손괴로 인한 누수는 상수도관에서 발생한 누수가 하수도관으로 유입되는 지하누수인 관계로 발견 자체가 어려웠던 것으로 보이는바, 피고가 이 사건 손괴를 즉시 발견하지 못한 데에 고의나 과실이 있다고 보기는 어려운 점, ④ 피고는 서울특별시 수도이설 등 원인자 및 손괴자 부담금 징수조례 시행규칙(2010. 9. 30. 규칙 제3768호로 개정되기 전의 것) 제2조 제2항에 따라 오리피스 공식 3)을 적용하여 손실수량을 산정하였는데4), 위 산정 과정에서 피고가 누수단면의 윗변과 밑변을 각 4.0cm, 3.5cm, 높이를 0.8cm로 보고 사다리꼴 면적계산 식5)으로 누수단면적을 계산한 것에 위법이 있다고 보기 어려운 점, ⑤ 이 사건 손괴로 인하여 누수단면으로 상당기간 고압의 수돗물이 유출되기는 하였지만 이 법원의 검증결과에 의하면 누수단면의 끝부분은 최초 손과 시와 마찬가지로 날카로움이 유지되고 있는 것을 확인할 수 있어 이 사건 최초 손괴 시부터 누수공사완료시까지의 기간 동안 최초의 누수단면이 유출 수압에 의하여 마모되거나 확대되었다고 보기 어려운 점, ⑥ 이 사건 손괴 현장이 위치해 있는 중산3블럭 월별 최소유량 및 월일평균을 살펴보면, 2008. 11.의 최소유량이 28, 월 일평균이 11,305m이다가 2008. 12.부터 최소유량이 36m, 월일평균 11,827m²로 증가하였고, 2008. 11.경 일 최소유량을 살펴보면 25일 27㎡, 26일 27m, 27일 28m, 28일 33m, 29일 34m로 27일부터 그 수치가 증가한 사실을 알 수 있는바, 원고 측이 시추조사를 실시한 시기는 주민들이 이주를 하던 시기였으므로 통상은 최소유량 값이 감소되어야만 하는데 그 값이 위와 같이 증가하였던 것은 이 사건 손괴로 인한 것으로 보이므로, 위와 같은 사정을 근거로 피고가 이 사건 손괴 발생일을 시추 시기인 2008. 11. 27.로 보고 이 사건 처분을 한 것을 부당하다고 할 수 없는 점 등을 종합하면, 피고의 이 사건 처분이 수도시설 손괴자의 책임을 넘어 그 한계를 벗어난 것으로 위법하다고 할 수는 없다. 따라서 이 부분에 관한 원고의 주장도 이유 없다.

3. Conclusion

Therefore, the part against the defendant among the judgment of the court of first instance that partially different conclusions is unfair, and thus the plaintiff's claim against the cancellation is dismissed. It is so decided as per Disposition.

Judges

The presiding judge, public judge and senior judge;

Judges Hun-Ba

Judges Kim Gin-ran

Note tin

1) The Plaintiff initially filed a claim with the Plaintiff to the effect that the Defendant would revoke the entire disposition of imposition of KRW 125,621,790 on the Plaintiff. The court of first instance revoked the Plaintiff’s claim regarding the part of KRW 124,632,400, among the above disposition of imposition, and rendered a judgment dismissing the claim for the portion in excess thereof. The Plaintiff did not file an appeal against the part against which the Defendant lost, but the judgment prior to the remand was pronounced that the Defendant dismissed the Defendant’s appeal. Accordingly, the Defendant’s appeal and the judgment prior to the remand was reversed. The part subject to the judgment of this court is limited to KRW 124,632,400, excluding KRW 989,390, among the above disposition of imposition.

2) The amendment was wholly amended by Act No. 8370 on April 11, 2007 and was amended by Act No. 10317 on May 25, 2010

3) 1.Modern loss: Original application

(a) Quantity of the first loss;

Q1 = CA

(b) Quantity of loss per hour Q2=0.64a±10,000 X3,60-3.2a

4) The Defendant calculated the daily water leakage volume by inserting the formula regarding the loss amount, Q-3.2aV, the size (mi), the size (mi) of P, 200 of the water supply center, 3cc. (4.0+3.5) 0.8/2) of water pressure, and 437m. (=3.2 x 3.6 x 3.6 x 24 hours) of water pressure.

5) The Plaintiff did not deal with the method calculated by calculating the size of the instant portion of the loss in question by the formula for calculating the size of the shooting bridge area.