[1] The method of determining whether a municipal ordinance complies with the limits of delegation where a statute delegates a specific matter to the municipal ordinance

[2] The purport of Article 8(1)1 of the Act on the Management and Use of Livestock Excreta only requires abstract and open concept as to the designation criteria for the restricted area of livestock raising

[3] In a case where Article 3(1)1 [Attachment 2] of the Ordinance on the Restriction on Livestock Raising of Geumsan-gun, which provides that a chickens's livestock breeding restriction area is "90 meters away from a residential densely-populated area," upon delegation of Article 8(1)1 of the Act on the Management and Use of Livestock Excreta, is at issue as to whether it exceeds the scope of delegation under the delegation provision, the case holding that the above provision of the Ordinance has concrete within its meaning the "area in need of the protection of living environment as a residential densely-populated area" for the preservation of the living environment of local residents under the delegation provision, and that it cannot be deemed that it conforms to the purpose and object of the designation of a livestock breeding restriction area under the delegation provision and exceeded the limit delegated under the delegation provision, and otherwise, the judgment below erred by misapprehending the legal principles

[1] Where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation should also be made by comprehensively examining the legislative purpose and content of the pertinent 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 can be seen as a new legislation going beyond the scope of the terms used in the delegation provision by expanding or reducing the scope of delegation beyond the meaning of the terms used in the delegation provision.

[2] Article 8(1)1 of the Act on the Management and Use of Livestock Excreta (hereinafter “Act on Livestock Excreta”) allows local residents to designate a livestock-restricted area for the purpose of preserving the living environment or preserving the quality of water sources; the subject of designation is limited to residential smuggling area, water quality preservation area, etc.; however, the criteria for designation are limited to residential smuggling area, “area in need of protection of living environment,” and “area in need of preservation of water quality equivalent to the water source protection area, etc.” as an abstract and open concept. In light of the legislative purpose of the Act on Livestock Excreta, the delegation clause’s imposition of such a statutory form is set by considering the limitation on property rights of local residents due to the designation of livestock raising-restricted area, and the detailed criteria should be reasonably determined in accordance with professional and technical judgment and policy consideration in accordance with the actual condition of each local government.

[3] In a case where the issue is whether the scope of delegation under Article 3(1)1 [Attachment 2] of the Act on the Management and Use of Livestock Excreta (hereinafter “Act on the Management and Use of Livestock Excreta”) is beyond the scope of delegation under the delegation under Article 8(1)1 [Attachment 2] of the “Ordinance on the Restriction of Livestock Raising in Geumsan-gun” stipulating a zone where livestock raising restriction is restricted from the area where the livestock is located within the boundary of Geumsan-gun under the delegation of the Act on the Management and Use of Livestock Excreta (hereinafter “Delegation Clause”), the case held that the judgment below erred in the misapprehension of the legal principles as to the scope of delegation under the aforementioned Ordinance on the restriction of the living environment of residents, even if the restriction of livestock raising in the existing livestock shed is restricted from the scope of delegation under the aforementioned Ordinance, and thus, it is difficult to view that the above provision under the Ordinance violated the rights of livestock breeding in the existing livestock shed, and that the aforementioned provision violates the property rights of residents in the area where the new livestock breeding is delegated to the extent of delegation under the aforementioned Ordinance.

[1] Article 22 of the Local Autonomy Act / [2] Articles 1 and 8(1)1 of the Act on the Management and Use of Livestock Excreta / [3] Articles 1 and 8(1)1 and (4) of the Act on the Management and Use of Livestock Excreta

[1] Supreme Court Decision 2010Du25077 Decided October 25, 2012 (Gong2012Ha, 1924), Supreme Court Decision 2017Du56193 Decided August 30, 2018 (Gong2018Ha, 1932) / [2] Supreme Court Decision 2012Du15838 Decided May 12, 2016, Supreme Court Decision 2014Du37122 Decided April 7, 2017 (Gong2017Sang, 980)

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Geumsan Gun (Law Firm Han field, Attorneys Kang Byung-jin et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2017Nu14135 decided May 2, 2018

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. 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 should also be made by comprehensively examining the legislative purpose and contents of the relevant statutory provision, the structure of the provision, and the relationship with other provisions. Even though the language and text of the delegation provision clearly states the scope of delegation by using terms that clearly knows the meaning thereof, it goes beyond the limits of the meaning thereof, and whether it can be deemed that a new legislation was made beyond the bounds 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).

2. The purpose of the Act on the Management and Use of Livestock Excreta (hereinafter referred to as the “livestock Excreta Act”) is to contribute to the development of the livestock industry in harmony with the environment, the improvement of national health, and the environmental conservation by converting livestock excreta into resources or disposing of it properly, keeping the natural environment and living environment clean, and reducing water pollution (Article 1). Accordingly, the aforementioned Act stipulates that the head of a Si/Gun/Gu may designate a specific area as prescribed by municipal ordinances of the relevant local government to restrict livestock raising in an area where restriction on raising livestock is deemed necessary for the protection of the living environment of local residents or for an area where water quality preservation equivalent to a water source protection area, etc. is necessary for the preservation of the living environment of local residents or for the preservation of water quality (Article 8 (1) 1; hereinafter referred to as the “instant delegation clause”).

Furthermore, the Livestock Excreta Act provides that the head of a Si/Gun/Gu may order a person who raises livestock in a zone designated and publicly announced as above to relocate livestock pens or remove hazards, etc. (Article 8(3)), and that when he/she orders the relocation of livestock pens, he/she shall grant a grace period of not less than one year, and that he/she shall make reasonable compensation, such as financial support, arrangement of sites, etc. according to the criteria and procedures prescribed by Presidential Decree (Article 8(4)), and that the designation of a zone subject to livestock breeding restriction does not infringe on the property value of business rights, such as livestock pens, etc. of livestock raiser already formed due to

3. As such, the instant delegation provision allows local residents to designate a livestock-raising restriction zone for the purpose of preserving the living environment or preserving the water quality of water sources; limited to residential congested areas, water quality preservation areas, etc.; however, its designation criteria include only the areas requiring protection of living environment as “area requiring preservation of water quality corresponding to the water source protection area, etc.” and the abstract and open concept as “area requiring preservation of water quality corresponding to the water source preservation area, etc.” In light of the legislative purpose, etc. of the Livestock Excreta Act, the delegation provision of this case established the major course and limit of the designation standards under the Act in consideration of the restriction on property rights of local residents due to the designation of a livestock raising restriction zone, and the detailed criteria should be reasonably determined in accordance with professional and technical judgment and policy consideration (see, e.g., Supreme Court Decisions 2012Du15838, May 12, 2016; 2014Du37122, Apr. 7, 2017).

4. In light of the language, structure, and purport of the instant delegation provision, we examine whether the instant ordinance provision deviates from the scope of delegation.

A. Article 3(1)1 [Attachment 2] of the Geum-gun Ordinance on Restriction on Livestock Raising (wholly amended by the Ordinance No. 2065, Nov. 23, 2016) of the Geumsan-gun Ordinance on Restriction on Livestock Raising (wholly amended by the Ordinance No. 2065, Nov. 23, 2016) provides that the area subject to restriction on the distance by type of livestock according to the establishment of an area subject to residential smuggling shall be 900 meters from the area subject to residential smuggling (hereinafter “instant Ordinance”). Furthermore, Article 3(2) of the said Ordinance also provides that a zone subject to restriction on livestock raising may raise livestock in the case of an area subject to restriction on livestock raising (Article 3(1)1 of the said Ordinance) and “an area that does not affect public health and environmental sanitation in accordance with the environmental impact assessment under the Environmental Impact Assessment Act and the preservation of water sources” (Article 6).

B. The instant ordinance provisions may be deemed to have embodied within their meaning the “area requiring the protection of living environment in a residential congested area” for the “Preservation of the living environment of local residents” under the instant delegation provisions, and cannot be deemed to have satisfied the purpose and object of the designation of a livestock breeding restriction area as prescribed by the instant delegation provision and exceeded the limit delegated by the said provision. The reasons are as follows.

(1) Article 117(1) of the Constitution of the Republic of Korea guarantees the comprehensive autonomy of local governments. As such, the delegation of an Act to ordinances related to autonomous affairs does not necessarily require strictness to be determined within a specific scope, such as delegation of an Act to a statutory order. Even in cases where a Act comprehensively delegates matters concerning the rights and obligations of residents by municipal ordinance without specifying the specific scope thereof, a local government may enact by municipal ordinance matters concerning the rights and obligations of residents to the extent that it does not violate statutes (see, e.g., Supreme Court Decisions 2016Hun-Ma5162, Dec. 5, 2017; 92Hun-Ma264, 279, Apr. 20, 1995).

(2) The restriction on land use and development for public interest constitutes a social limitation on the exercise of property rights to be accepted by a landowner, in principle, unless it is a case where land cannot be used for its original purpose or it is no longer possible to use or profit from the land because no longer legally permitted method exists (see Supreme Court en banc Decision 2010Da108197, Mar. 27, 2014; Constitutional Court en banc Decision 89Hun-Ma214, Dec. 24, 1998).

Even if the instant ordinance provisions restrict raising of livestock in a certain area within the jurisdiction of Geumsan-gun, the same does not immediately prohibit raising of livestock in the existing livestock shed. If the Defendant orders the relocation of an existing livestock shed, he/she shall be granted a grace period of not less than one year and make reasonable compensation (Article 8(4) of the Livestock Excreta Act). Therefore, it is difficult to deem that the instant ordinance provisions infringe on the right of livestock breeding in the existing livestock shed to engage in the business of raising livestock in the existing livestock shed. Even if new raising of livestock is restricted due to the instant ordinance provisions, if the relevant land can be used for the previous purpose, it cannot be deemed as infringing on the property right of the landowner.

(3) The former Ordinance on Restriction on Livestock Raising of Geumsan-gun (wholly amended by Ordinance No. 1996, Sept. 7, 2015) provides that “400 meters from the area where livestock breeding is restricted” shall be “400 meters from the area where livestock is closely located.” However, as a group of complaints filed by livestock farmers against environmental pollution, such as malodor, noise, water quality, and atmosphere in a neighboring collective residential area, the fundamental solution is required, and it is necessary to maintain equity in the restricted area at a preventive level because the imbalance between the establishment of a distance restriction with neighboring Sis and Guns is likely to cause a concern about fire-fighting, and thereby, it is necessary to protect existing livestock raisers, and thereby, to protect the name of the Geumsan-gun, Fransan-gun, which is the name of the Geumsan-gun, and Fransan-gun, which is consistent with the establishment of the restricted area for livestock raising, the said Ordinance was partially amended by Ordinance No. 1060, Sept. 7, 2015 to 196.

According to the developments leading up to the amendment of the ordinances of this case, the reason why Geumsan-gun expanded the livestock raising restriction area through the amendment of the ordinances on September 7, 2015 is that the group civil petitions of residents residing near the livestock farm have occurred several times under the previous 400 meters restriction, and that in the case of Sis/Guns adjacent to Geumsan-gun, the scope of the area where livestock raising restriction was restricted was larger than the Geumsan-gun, and the livestock farmers in other areas were likely to move to the Geumsan-gun. Accordingly, the Geumsan-gun expanded the livestock breeding area of Geumsan-gun to “1,200 meters from the residential smuggling area,” while respecting the purport of the final judgment finalized as above, it is difficult to view that the scope of delegation of the ordinances of this case exceeded the scope of delegation of the ordinances of this case.

5. Nevertheless, the lower court determined that the instant refusal disposition based on the instant provision was unlawful on the premise that the instant provision was null and void by excessively restricting the raising of livestock beyond the scope of delegation by the parent law. In so doing, the lower court erred by misapprehending the legal doctrine on deviations from the scope of delegation stipulated by the law.

6. 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.

Justices Park Jung-hwa (Presiding Justice)