Lee Environment Co., Ltd. (Law Firm Jeong, Attorney Kang Jong-chul, Counsel for defendant-appellant)

Head of Gangseo-gu Busan Metropolitan Government (Attorney Lee Jae-ho, Counsel for defendant)

Daedo Environment Co., Ltd. (Law Firm International Law, Attorney Han Won-woo, Counsel for defendant-appellant)

April 20, 2011

Busan District Court Decision 2010Guhap857 Decided August 20, 2010

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising from the defendant's appeal is assessed against the defendant, and the part resulting from the defendant's intervention is assessed against the defendant.

1. Purport of claim

The defendant's disposition of non-conformity of domestic waste (collection and transportation business) business plan against the plaintiff on December 11, 2009 shall be revoked.

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 December 4, 2009, the Plaintiff submitted to the Defendant a waste collection and transportation business, business-related wastes, domestic wastes, and waste disposal business plan with the business territory of Gangseo-gu Busan Metropolitan City (hereinafter “instant business plan”).

B. On December 11, 2009, the Defendant notified the Plaintiff that the project plan of this case is inappropriate (hereinafter “instant disposition”) on the ground that it is difficult to grant separate new permission because it is sufficiently treated as human resources and equipment possessed by one collecting and transporting company, which is already permitted. When there is a change in future conditions, it is difficult to review the feasibility of new permission and intends to select an enterprise by means of newspaper publication, open draw, etc.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3-1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

In light of the current development projects that will be implemented in the future and the preparation period of the waste collection and transportation business, it is necessary to select the domestic waste collection and transportation business at the time of the disposal of this case.

In addition, in Gangseo-gu, only one domestic waste collection and transportation company is engaged exclusively in the exclusive business with the permission, the dependence on it is serious, and the competition is weak.

Therefore, the instant disposition that notified the inappropriate business plan of this case is unlawful because it does not have any grounds for disposition or is in violation of the discretionary authority even if there are grounds for disposition.

(2) Defendant and Defendant Intervenor’s assertion

Waste collection and transportation under the Wastes Control Act is a discretionary act, not a binding act, since permission for waste collection and transportation business by administrative agencies for the original affairs of local governments is a patent by lectures.

In addition, the system of notification of conformity with the business plan for waste disposal (collection and transportation business) is to prevent enormous economic and time loss if a person who intends to operate a waste disposal business voluntarily installs a facility, etc. and applied for permission at the stage of permission, but is found to be inappropriate, so the applicant for permission shall suffer enormous financial and time loss, and at the same time, the permission-granting authority shall review the business plan in advance and notify the applicant of its conformity, and shall review the remaining requirements for permission at the stage of permission and process the permission promptly. On the other hand, if the administrative agency has notified of conformity with the waste disposal business plan, it is bound to be bound by the application for permission according to the above business plan. Thus, it is reasonable to view that the administrative agency may consider the reasons other than the reasons under each subparagraph of Article 25(2) of the Wastes Control Act, such as the quantity of waste generation and future waste disposal plan, and the capacity of the existing company

However, according to the report that the Construction and Economic Development Institute was requested by Gangseo-gu to analyze the feasibility of the operation method of horizontal cleaning and the addition of the private company entrusted with domestic waste from Gangseo-gu on December 2, 2008, the population as of December 2, 2008 is at the level of half of the average population of 94,002 per domestic waste collection and transportation company in Busan Metropolitan City. The daily waste per capita in Gangseo-gu in 2008 is at approximately 0.308 kilograms, and the daily waste per capita in Gangseo-gu in Busan Metropolitan City is at the level of 1/937 kilograms of the total daily waste per capita in Busan Metropolitan City. ii) According to the 2010 Gu administration in Gangseo-gu, the population in Gangseo-gu in 2009 is at the level of 63,753 and 8,000 persons compared to the year 208, and the total domestic waste discharged in the private sector in 2009 is considerably low compared to the population in this case.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) According to the provisions of Articles 25(1) and (2), and 26 of the Wastes Control Act and Article 33(1) [Attachment 4] of the Busan Metropolitan City Ordinance on Waste Management, Etc., where a person who intends to engage in the business of collecting, transporting, or disposing of wastes uses wastes, other than designated wastes, to submit a waste disposal business plan to the head of the Gu who is delegated with the authority of the Mayor, the head of the Gu shall provide that the waste disposal business plan shall be notified to the person who submitted the waste disposal business plan after reviewing whether the person who intends to obtain a license for waste disposal business (including an executive officer in cases of a corporation) is disqualified under Article 26, whether the location, etc. of waste disposal facilities conflicts with other Acts,

(2) 이 사건으로 돌아가 살피건대, ① 폐기물관리법 제25조 제2항 은 2007. 8. 3. 법률 제8613호로 개정된 것으로서 종전에 “환경부장관 또는 시·도지사는 제1항에 따라 제출된 폐기물처리사업계획서를 검토하여 그 적합 여부를 폐기물처리사업계획서를 제출한 자에게 알려야 한다.”고 규정되어 있는 것과 달리, 앞서 본 바와 같이 제한적으로 열거된 4가지 사항에 관하여 검토한 후 그 적합 여부를 통보하도록 규정하고 있는 점, ② 위와 같은 개정은, 종래 허가권자가 폐기물처리업 허가의 사전 단계로서 폐기물처리사업계획서의 적합성을 검토하는 경우 검토사항의 구체적인 범위가 불명확하여 이를 개선할 필요성이 제기되고, 폐기물처리사업계획서 제출자가 미리 검토사항을 알 수 있도록 하여 허가권자의 재량행위의 범위를 명확하게 하여 투명성을 높이고자 이루어진 것인 점, ③ 2010. 4. 30. 환경부예규 제413호로 개정된 폐기물처리업 허가업무처리지침은 개정 이전의 지침에서 폐기물의 수집·운반사업계획서에 대한 검토사항 중 하나로 규정하고 있던 “폐기물 종류별 수집·운반 또는 처리계획 폐기물량이 영업을 하고자 하는 구역안에서 발생되어 위탁처리되는 폐기물량보다 많은지 여부 검토. 다만, 공업단지의 조성 등으로 인하여 허가시점에서 위탁처리 물량의 증가가 예상되는 경우에는 그러하지 아니하다”라는 부분을 삭제함에 따라 폐기물의 수집·운반사업계획서에 대한 검토사항으로는 폐기물 종류별 수집·운반 또는 처리계획 폐기물량이 폐기물 보관시설 및 중간처리시설 용량에 비하여 과다하게 계획되어 있는지 여부만 남게 된 점, ④ 폐기물처리사업계획 적정 여부에 대한 판단을 할 경우 필요한 기준의 설정 역시 행정청의 재량에 속하는 것이라는 취지의 대법원 판례( 대법원 2004. 5. 28. 선고 2004두961 판결 참조)는 위와 같이 개정된 법령 하에서는 그대로 원용할 수 없는 점, ⑤ 피고는 폐기물관리법 제25조 제2항 에 열거된 사항 외의 사유를 들어 이 사건 처분을 한 점 등을 종합하면, 이 사건 처분은 적법한 처분사유 없이 한 것이어서 부적법하다.

(3) In examining the suitability of the instant project plan, the instant disposition is unlawful for the following reasons even if the Defendant, as alleged in the Defendant and the Intervenor’s Intervenor, may also consider the grounds for review at the stage of permission, i.e., the amount of waste generation, the future waste disposal plan, and the capacity to dispose of the existing enterprises, other than the grounds prescribed in each subparagraph of Article 25(2) of

(A) In determining the suitability of a waste disposal plan, it is not allowed to uniformly limit the number of permitted businesses through the efficient collection, transportation, and disposal of wastes, and to maintain the exclusive right of waste collection and transportation of one existing permitted business entity with a view to maintaining the competitiveness of an environmental industry through the efficient collection, transportation, and disposal of wastes, since only one specific business entity is completely excluded from the market economy principle of free competition when the exclusive right of waste collection and transportation is exercised, as well as the width of choice for services that can be received by the residents is restricted in terms of administrative regulation relaxation, thereby preventing the monopoly of specific business entities from expanding the scope of participation in the business, and inducing the improvement of the quality of services and the reduction of fees through the bona fide competition between the enterprises, thereby hindering the improvement of the welfare of residents and the development of technology through the efficient collection, transportation, and disposal of wastes, and thus, it is not allowed for the administrative agency that determines the suitability of the waste disposal plan to maintain the exclusive right of waste collection and transportation of 20 existing businesses with a view to the lack of any objective and efficient implementation of the new permit permit granted for transportation and transportation of wastes.

(B) Facts of recognition

1) The population of the Intervenor joining the Defendant as of 2008 is 55,858 and 28th among the enterprises collecting and transporting 34 wastes within the autonomous districts affiliated with Busan Metropolitan City (160,164 in the case of the area where the population per waste collection and transportation enterprise is 160,164 in North-gu Busan Metropolitan City, and 25,301 in the middle-gu Busan Metropolitan City).

2) The daily average daily discharge volume of domestic waste per person in Gangseo-gu, 2008 is 0.30 kilograms per person in Gangseo-gu, Busan Metropolitan City, and the average daily discharge volume of domestic waste per person in the entire Busan Metropolitan City is 0.937 kilograms per day. As of the end of November 2009, the daily discharge volume of domestic waste in Gangseo-gu is 20.3 tons per day, and the Defendant’s Intervenor’s ability to collect and transport domestic waste is 63.5 tons per day.

3) The second height of the expenses for the collection and transportation of domestic wastes by Gangseo-gu in 2008 divided the expenses for the collection and transportation of domestic wastes to the Defendant joining the Defendant by the competent population (64,036 won: 64,036 won in Jung-gu; 36,572 won in Seo-gu; 29,545 won in Dong-gu; 22,123 won in Young-gu; 20,98 won in Busan-gu; 21,494 won in Dong-gu; 21,494 won in Nam-gu; 19,430 won in Nam-gu; 18,281 won in North-gu; 16,206 won in North-gu; 14,807 won in Seo-gu; 21,326 won in Seo-gu; 22,515 won in Seo-gu; 22,515 won in Seo-gu; 29,138 won in Seo-gu;

4) On June 5, 2008, the Plaintiff submitted a waste disposal business plan to the Defendant on June 11, 2008, but received the said business plan notification from the Defendant on June 11, 2008, and received the Busan District Court Decision 2008Guhap3525, and was ruled against the Plaintiff by an administrative litigation seeking the revocation of the said notification disposition. However, on May 1, 2009, the date of closing argument of the instant case, there were 12 vehicles owned by the Defendant joining the Defendant as of May 1, 2009, but all 19 vehicles currently have 7 vehicles again after the said decision was rendered

5) According to a report that was conducted by the Construction and Economic Development Institute as an incorporated foundation upon receipt of a request from Gangseo-gu to analyze the feasibility of the methods of cleaning and operating roadsides and the addition of household waste private consignment companies, the population of Gangseo-gu is 67,000 in 2010, 75,000 in 20, 86,000 in 200 in 2012, 100,000 in 2013, 118,000 in 200 in 2014, and 142,000 in 2015. Meanwhile, the population of Gangseo-gu as of December 2, 2009, including 3,381 foreigners, is 64,113.

6) According to the Gangseo-gu's 2010 Gu administration white papers, the population of Gangseo-gu in 2009 increased by 7,895 persons compared to 63,753 persons in 2008 55,858 persons in 2008, and the domestic waste discharge quantity in 2009 increased by 6,886 tons in 2009 6,273 tons in 2008.

[Reasons for Recognition] The descriptions of Eul evidence 4-1, 2, 10, 11, Na 3, 4 and the purport of the whole pleadings

(C) As seen earlier, the Defendant’s only the Defendant’s Intervenor is running the business with the permission for domestic waste collection and transportation business from the Defendant. As such, the Defendant’s decision on the suitability of the instant business plan cannot simply notify the Defendant that the Defendant’s disposal capacity exceeds the amount of domestic waste generated within the jurisdiction of the Defendant. If the Defendant grants new permission because of the excessive amount of domestic waste generated, there are special circumstances that are anticipated to make it impossible for the Defendant to carry out the stable and efficient responsible administration of domestic waste collection and transportation due to excessive competition among the enterprises, as well as the extraordinary circumstances that are anticipated to make it impossible to resolve the failure even if necessary conditions, such as restriction on business area, are attached.

According to the above facts, if the defendant grants permission for new domestic waste collection and transportation business to the plaintiff or other business, it is anticipated that an excessive phenomenon of supply facilities will occur to a certain extent, but it is not recognized that the order of the collection and transportation of existing domestic waste will be destroyed due to the absence of new permission, but it is also high in the following circumstances: ① the cost of collecting and transportation of domestic waste per head of Gangseo-gu Busan Metropolitan City to the second degree; it is assumed that only the defendant except the defendant's 208Guhap3525, the above Busan District Court Decision 2008GuMa3525, and the defendant's 2000's 2000's 200's 70's 90's 19's 19's 200's 70's 9's 90's 100's 9's 90's 200's 9's 190's 10's 200's 's 98's 20's 's 10's 20'

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Jeong-young (Presiding Judge)