[1] Whether improper notification by the authority to permit waste disposal business under the Wastes Control Act constitutes an administrative disposition (affirmative)

[2] The purport of establishing a proper and proper notification system of a business plan prior to the permission of a waste disposal business

[3] Criteria to distinguish between speed action and discretionary action

[4] The method of interpreting and applying criteria for determining whether a waste treatment business plan is appropriate

[5] The case holding that the pertinent disposition is lawful on the ground that the Ministry of Environment's established business guidelines for permission for waste treatment business, etc., as a basis for notification of appropriateness of business plans related to permission for waste treatment business

[1] According to the provisions of the Wastes Control Act and subordinate statutes, in order to obtain a license for a waste disposal business, a business plan shall be submitted and received from the permission-granting authority, and only the person who received the appropriate notification may apply for permission with facilities, equipment, technical capability, and capital within a certain period. Thus, the improper notification constitutes an administrative disposition because it regulates individual rights and legal interests individually and specifically, such as restricting the application for permission itself.

[2] In light of the provisions of Article 26(1) and (2) of the Wastes Control Act and Article 17(1) through (5) of the Enforcement Rule of the same Act, the person who intends to operate a waste treatment business has a proper and irregular notification system of the business plan prior to permission for the waste treatment business is likely to suffer enormous economic and time loss if the person who intends to operate a waste treatment business applies for permission for the installation of facilities, etc. on his/her own, and the business plan is found inappropriate at the time of permission, and thus, if the business plan is found inappropriate, the applicant for permission suffers enormous financial and time loss. Thus, at the same time, the agency granting permission shall review the business plan in

[3] Even though a certain administrative act is a binding act or a discretionary act, it cannot be uniformly defined as a discretionary act or a discretionary act, and it shall be determined individually in accordance with the form, structure, or language of the provision that forms the basis for the pertinent disposition.

[4] Examining the structure or language of Article 26(1) and (2) of the Wastes Control Act and Article 17(1) through (4) of the Enforcement Rule of the same Act, which are the basis of the pertinent disposition, the provisions stipulate the minimum requirements for obtaining permission for waste disposal business, but they have left room for discretion as to whether the business is appropriate because they fail to take the form prescribed in a uniform determination as to the appropriateness of the business plan. In such a case, setting the criteria necessary for notifying the appropriateness of the business plan also belongs to the administrative agency’s discretion. Thus, the administrative agency’s intent shall be respected as far as possible, unless there are any special circumstances to deem that the established criteria are objectively unreasonable or unreasonable.

[5] The case reversing the judgment of the court below that a disposition made in accordance with the established rules and guidelines of the Ministry of Environment was lawful, on the ground that the guidelines for review of a business plan based on the permission for waste disposal business and daily waste collection and transportation business by the Daegu Metropolitan City Mayor on February 13, 1997, as well as the guidelines for review of a business plan based on the permission for the collection and transportation business of daily waste and daily waste from a place of business as of February 13, 1997, and there are no other special circumstances to deem that the established standards are objectively unreasonable or unreasonable

[1] Article 26 (1) and (2) of the Wastes Control Act, Article 17 (2) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 27 of July 19, 197) / [2] Article 26 (1) and (2) of the Wastes Control Act, Article 17 (2) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 27 of July 19, 197) / [3] Articles 1 [general administrative disposition] and 27 of the Administrative Litigation Act / [4] Article 26 (1) and (2) of the Wastes Control Act, Article 17 of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 27 of July 19, 197), Article 27 of the Administrative Litigation Act / [5] Article 1 of the Administrative Litigation Act / [1] Articles 27 of the Administrative Litigation Act

[2] Supreme Court Decision 95Nu14244 delivered on October 25, 1996 (Gong1996Ha, 3457) / [3] Supreme Court Decision 94Nu12302 delivered on December 12, 1995 (Gong1996Sang, 409) Supreme Court Decision 97Nu499 delivered on December 9, 1997 (Gong1998Sang, 302), Supreme Court Decision 97Nu15418 delivered on December 26, 1997 (Gong198Sang, 429) / [4] Supreme Court Decision 97Nu13061 delivered on February 13, 198 (Gong198Sang, 785)

Plaintiff (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Head of Daegu Metropolitan City Dong-gu

Daegu High Court Decision 97Gu4419 delivered on November 28, 1997

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

On the first ground for appeal

According to the reasoning of the judgment below, on February 27, 1997, the plaintiff prepared and submitted a business plan with respect to the collection and transportation of wastes from among the waste collection and transportation business pursuant to Article 26 (1) of the Wastes Control Act and Article 17 (2) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Environment No. 27 of July 19, 1997; hereinafter the same shall apply). The defendant submitted to the plaintiff on February 28, 1997, a business plan with respect to the collection and transportation of domestic wastes from the place of business and living wastes from the place of business, and the same type of business. The defendant is under the inherent authority of the defendant on February 28, 1997, and the defendant is responsible for efficiently treating domestic wastes and appropriately operating the disposal company by improving the proper and stable disposal and collection method of domestic wastes discharged within his jurisdiction, and the permission for the collection and transportation business of domestic wastes from the place of business and the extension of entrusted area. Accordingly, the defendant's application for permission is not subject to be notified.

In light of the provisions of Article 26(1) and (2) of the Wastes Control Act and Article 17(1) through (5) of the Enforcement Rule of the same Act, the person who intends to operate a waste treatment business prior to the permission for a waste treatment business is suffering from enormous economic and time loss if the person who intends to operate a waste treatment business voluntarily applies for the permission for installation of facilities, etc. and the business plan is found to be improper at the permission stage. Thus, the person who intends to operate a waste treatment business suffers from enormous financial and time loss, and at the same time, the permission-granting agency should review the business plan in advance and notify the appropriate and proper matters, and then shall review the remaining requirements for permission at the permission stage and promptly handle the permission (see Supreme Court Decision 95Nu14244 delivered on October 25, 196). Thus, the decision of the court below is justified on the premise of the purport of the above decision, and there is no violation of law as

The grounds of appeal cannot be accepted.

On the second ground for appeal

In addition, according to the reasoning of the judgment below, the court below held that since the plaintiff submitted a business plan to obtain a license for a waste disposal business by submitting all documents, such as the collection, transportation, or disposal plan of wastes subject to disposal as prescribed by Article 17 (2) of the Enforcement Decree of the same Act, a plan for installation of facilities or equipment, a plan for securing technical capacity, etc., the defendant did not examine the appropriateness of the business plan based on submitted documents and notify the plaintiff of the appropriateness of the plan. In other words, the permission for the collection and transportation business of domestic wastes and workplace wastes is an open method in accordance with due process when the occurrence of factors such as substantial increase of waste volume, expansion of entrusted area, etc. (the above Ministry of Environment established rules also review the quantity of the business plan and the appropriateness of the period of the business plan, but it does not provide for improper notification reasons).

However, even if a certain administrative act is a binding act or a discretionary act, it cannot be uniformly defined as a discretionary act or a discretionary act, and it should be determined individually in accordance with the form, system, or language of the provision that forms the basis of the pertinent disposition (see, e.g., Supreme Court Decisions 94Nu12302, Dec. 12, 1995; 97Nu499, Dec. 9, 197; 97Nu15418, Dec. 26, 197). Thus, considering the structure or language of Article 26(1) and (2) of the Wastes Control Act, which is the basis of the instant disposition, as well as Article 17(1) through (4) of the Enforcement Rule, which provides minimum requirements for obtaining a waste treatment business permission, it is not reasonable to determine whether the pertinent business plan is reasonable or not, as long as it does not provide for a reasonable business plan, to the extent that it does not belong to an administrative agency’s reasonable criteria for notification.

According to the records, the Ministry of Environment's guidelines for permission for waste treatment business (No. 137 of March 5, 1996), which is an established rule for the Ministry of Environment, provides that the permitting authority shall review documents in addition to the review of business plan; whether the requirements for permission for the disposal business are met; whether the business plan are appropriate (i.e., adequacy of the business plan, quantity of the business plan, appropriateness of the period of the business plan); technical review; and on-site investigations, etc.; and according to the guidelines for review of the business plan as of February 13, 1997, the Daegu Metropolitan City Mayor's guidelines for the collection of domestic wastes and living-oriented wastes; and (ii) the collection, transportation, and disposal of wastes by proxy, which are the minimum requirements for permission under Article 17 (1) [Attachment 6] of the Enforcement Rule of the same Act; and (iii) the head of the Gun's new guidelines for disposal of wastes x 25 days through 30 days through 15 days through 45 days through 5 days (5 days).25 days through 5 days through 5 days- 5 days- 5 days- 5 days- 5 days- 5 days- 5 days- - 5 days- 15.

The appeal pointing this out is with merit.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)