2016Gudan10225 Revocation of business suspension

Gyeong Environment Co., Ltd.

Head of Daegu Metropolitan City Southern-gu

April 14, 2017

May 19, 2017

1. The disposition of business suspension rendered by the Defendant to the Plaintiff on February 16, 2016 is revoked. 2. The litigation cost incurred by the Defendant is borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 4, 2004, the Plaintiff obtained permission for waste collection and transportation business from the Defendant, and at the time of permission, waste subject to business is domestic waste.

B. On August 2014, the Plaintiff was entrusted with waste treatment at the construction site of the first floor located in Daegu Northern-gu, and the Plaintiff’s employees B divided wastes generated at the above site into two ton of August 23, 2014, and transported them to the reclamation site of the Environment Resources Office in Daegu-gu, Seoul-gu, by dividing them into three ton of the wastes generated at the above site.

C. On February 16, 2016, the Defendant issued a disposition of business suspension for 15 days pursuant to Article 27(2)5 and Article 60 of the Wastes Control Act, and Article 83 of the Enforcement Rule of the Wastes Control Act (hereinafter “the instant disposition”) on the ground that the Plaintiff’s act of importing at least five tons of wastes generated in the same discharge area in installments constitutes a business that deviates from the category of business and the details of business under Article 25(5) of the Wastes Control Act.

D. While the instant lawsuit is pending, the Defendant asserted that the Plaintiff’s act was in violation of the conditions imposed pursuant to Article 25(7) of the Wastes Control Act at the time of permission for waste collection and transportation business, and added Article 27(2)6 and Article 60 of the Wastes Control Act, Article 83 of the Enforcement Rule of the Wastes Control Act to the grounds for the instant disposition.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7 through 9, 10, 17, and Eul evidence Nos. 1 through 4 (including the branch number if there is a lot number) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

Article 25(5) of the Wastes Control Act does not classify the waste disposal business according to the kinds of wastes. Even if the Plaintiff brought in more than five tons of business sites, this constitutes a waste collection and transportation business, and thus, it cannot be deemed that the Plaintiff committed a violation beyond the classification of business types and the contents of business under Article 27(2)5 of the Wastes Control Act. Furthermore, the Plaintiff’s designation of wastes for business purposes at the time of permission for waste collection and transportation business as domestic wastes does not fall under the conditions imposed under Article 25(7) of the Wastes Control Act, and thus, the Plaintiff cannot be deemed to have committed a violation of the conditions under Article 27(

2) The absence of intention

The Plaintiff’s employee B predicted the weight of the wastes generated at the construction site of a commercial building, and entered into an entrustment contract for waste disposal with respect to the 4.8 tons of the wastes. At the time of the secondary waste disposal, the weight of the wastes absorbing a large amount of rain at the time of the secondary waste disposal increases considerably more than the weight of the wastes. The Plaintiff’s employee’s act of bringing the wastes into the same area as it did not exceed 5 tons, and there was no intention to commit the act of violation

(iii) the deviation and abuse of discretionary authority;

During that period, the Plaintiff did not engage in the same act of violation, and the excessive weight is not so significant, and there is no intention to commit the same act of violation, and is currently engaged in the collection, transportation, and disposal of large-scale waste by the Seongdong-gu Office, which causes considerable inconvenience to the residents when the business is suspended. Considering the disadvantage suffered by the Plaintiff due to the instant disposition and the above circumstances, the instant disposition is unlawful as it is an abuse of discretionary authority.

B. Relevant statutes

It is as shown in the attached Form.

(c) judgment;

1) First, we examine the non-existence of grounds for disposition.

2) The Defendant asserts that the instant disposition was the grounds for disposition, first, that the Plaintiff engaged in business that deviates from the category of business and the details of business under the Wastes Control Act.

Article 2 subparagraphs 2 and 3 of the former Wastes Control Act (amended by Act No. 13038, Jan. 20, 2015; hereinafter the same) provides that domestic wastes refer to wastes other than commercial wastes, and commercial wastes refer to wastes generated from places of business prescribed by Presidential Decree.

In addition, Article 2 subparagraphs 8 and 9 of the former Enforcement Decree of the Wastes Control Act (amended by Presidential Decree No. 25951, Dec. 31, 2014) provides that a place of business that discharges at least five tons of wastes from construction works under the Framework Act on the Construction Industry, other construction works, or other works under the Framework Act on the Construction Industry shall be deemed a place of business.

According to the above legislation, since the waste at the site of commercial construction, which the Plaintiff brought into the Daegu Metropolitan City Environment Reclamation Site, exceeds five tons, it shall be deemed that it constitutes commercial waste.

However, Article 27 (2) 5 of the former Wastes Control Act provides that the permission may be revoked or an order may be issued to suspend all or part of the business for a fixed period not exceeding six months when the business is conducted in excess of the classification of the types of business and the scope of the business under Article 25 (5).

In addition, Article 25 (5) of the former Wastes Control Act is divided into seven categories (1. Waste Collection and Transportation Business, 2. Waste Collection and Transportation Business, 2. Interim Disposal Business, 3. Waste Disposal Business, 4. General Waste Disposal Business, 5. Interim Recycling Business, 6. Final Recycling Business, 7. Wastes Recycling Business, 7. General Recycling Business).

In light of the contents of the above relevant provisions, Article 27(2)5 of the former Wastes Control Act imposes sanctions on a person who has obtained a license for a waste disposal business among the above seven-party waste disposal businesses (e.g., “waste collection and transportation business entity” engaged in a comprehensive waste disposal business, etc.) where he/she engages in a business that constitutes another waste disposal business (e.g., “waste collection and transportation business entity”).

However, the reason for the disposition of this case is not that the plaintiff engaged in business other than the "waste collection and transportation business", but that the person who obtained permission for the "waste collection and transportation business" for the "household wastes" has engaged in the "waste collection and transportation business" for the "commercial wastes."

Therefore, even if based on its content itself, it is clear that the Plaintiff cannot be viewed as violating ‘the classification of the type of business and ‘the contents of business' under Article 27(2)5 of the former Wastes Control Act.

3) In addition, the Defendant added that the Plaintiff violated the conditions imposed pursuant to Article 25(7) of the Wastes Control Act at the time of permission for waste collection and transportation business.

In addition, Article 28 (1) 1 of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 664, Jul. 21, 2016; hereinafter the same) provides that "the person who intends to obtain permission for the waste collection and transportation business shall submit a plan for waste treatment business to the Minister of Environment or the Mayor/Do Governor," and that "the plan for the collection and transportation of wastes to be collected and transported shall be attached to the waste treatment business plan in attached Form 17." In attached Form 17 of the above Enforcement Rule, the "waste subject to business", "business area", "facilities and equipment name" shall be stated as the business outline.

In addition, Article 25 (2) and (3) of the former Wastes Control Act provides that "the Minister of Environment or the Mayor/Do Governor shall review the submitted waste treatment business plan and notify the suitability of the plan, and the person who has received the notification of suitability shall obtain permission from the Minister of Environment or the Mayor/Do Governor for each type of business, waste and treatment of wastes in accordance with the standards prescribed by Ordinance of the Ministry of Environment."

In addition, when granting permission pursuant to Article 25 (7) of the former Wastes Control Act, the Minister of Environment or the Mayor/Do governor may attach necessary conditions for the convenience of residents' living, the protection of the surrounding environment and the efficient management of waste disposal business, etc. However, the conditions that restrict the business area may be attached to the domestic waste collection and transportation business.

Meanwhile, Article 28 (7) of the former Enforcement Rule of the Wastes Control Act provides that "a Mayor/Do Governor, etc. shall issue a permit in attached Form 19 to the applicant when he/she grants a permit," and the attached Form 19 is separate from "waste subject to business", "business area", "equipment", etc.

Furthermore, according to Gap evidence No. 11, the plaintiff's permit obtained from the defendant at the time of permission for waste collection and transportation business on February 4, 2004 can be acknowledged that the "waste subject to business" is described as "household waste," "Seoul Metropolitan City Southern-gu, Seongbuk-gu, and terms and conditions of permission" in this "Seoul Metropolitan City, the area of business" as "the period for collecting, transporting, and disposing of large-scale waste within the Daegu Metropolitan City."

In light of the contents of the above provisions and the above facts of recognition, insofar as the "waste subject to business", "business area", and "equipment" are not specified in the permission conditions, they cannot be viewed as the conditions of permission, and it is reasonable to view them as the matters of permission that constitute the contents of the waste collection and transportation business.

Therefore, even if the Plaintiff obtained permission for waste collection and transportation business, it constitutes a condition under Article 25(7) of the former Wastes Control Act even if the Plaintiff obtained such permission.

The plaintiff can not be seen as violating the "permission conditions" under Article 27 (2) 6 of the former Wastes Control Act.

4) Therefore, the disposition of this case is inappropriate as the grounds for disposition do not exist, and thus, it should be revoked. This part of the plaintiff's assertion is reasonable ( insofar as the plaintiff's assertion as there is no grounds for disposition, the remaining plaintiff's assertion should not be examined).

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Lao Young-gu

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.