[1] Requirements for imposing an amount borne by borne by a person pursuant to Article 61 (1) of the former Sewerage Act

[2] Whether a “building, etc.” subject to imposition by an amount borne by an obligor pursuant to Article 61(1) of the former Sewerage Act and Article 35(1) of the former Enforcement Decree of the Sewerage Act includes a factory under Article 2 subparag. 1 of the Industrial Cluster Development and Factory Establishment Act (affirmative)

[1] In full view of the contents, form, and structure of Article 61(1) of the former Sewerage Act (amended by Act No. 11915, Jul. 16, 2013; hereinafter the same) and Article 35(1) of the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 25478, Jul. 16, 2014); and the process of amendment, etc., in order to impose an amount borne by a person pursuant to Article 61(1) of the former Sewerage Act, the requirements for new construction or extension of buildings, etc., alteration of the use thereof, and new discharge or increase of sewage in 10 cubic meters per day should also be met.

[2] The legislative purpose of the former Sewerage Act (amended by Act No. 11915, Jul. 16, 2013; hereinafter the same) is to properly treat sewage and foul waste, thereby contributing to the sound development of the community, the improvement of public health, and the preservation of the water quality of the public waters. The purpose of the Act is to impose the burden on the provider who caused the public sewerage construction or caused the need to construct the public sewerage as a result, in addition to the construction for installation and management of the public sewerage itself.

Article 2 subparag. 1 of the Industrial Cluster Development and Factory Establishment Act (hereinafter “Industrial Cluster Act”) provides that “factory” shall mean a place of business for conducting manufacturing business prescribed by Presidential Decree and equipped with manufacturing facilities, such as buildings or structures, or machinery and equipment forming a manufacturing process of goods, and ancillary facilities, as prescribed by Presidential Decree.” In full view of the contents, form, system, legislative purpose, etc. of Article 27(1), the main sentence of Article 34(1), Articles 35(1) and 61(1) of the former Sewerage Act, Article 35(1) of the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 25478, Jul. 16, 2014; hereinafter the same shall apply) and Article 35(1) of the former Enforcement Decree of the same Act shall be included in “buildings, etc. subject to imposition of charges borne by the burden of borne by a person pursuant to Article 61(1) of the former Sewerage Act” and Article 35(1) of the former Enforcement Decree of the same Act.

[1] Article 61(1) of the former Sewerage Act (Amended by Act No. 11915, Jul. 16, 2013); Article 61(1) of the Sewerage Act; Article 35(1) of the former Enforcement Decree of the Sewerage Act (Amended by Presidential Decree No. 25478, Jul. 16, 2014) / [2] Article 2 subparagraph 1 of the Industrial Cluster Development and Factory Establishment Act; Articles 27(1), 34(1), and 35(1) of the former Sewerage Act (Amended by Act No. 11915, Jul. 16, 2013); Article 35(1) of the former Enforcement Decree of the Sewerage Act (Amended by Presidential Decree No. 25478, Jul. 16, 2014)

Jinx Co., Ltd.

Ulsan Metropolitan City Head of Ulsan Metropolitan City (Government Law Firm Corporation, Attorneys Seo-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2014Nu22632 decided March 19, 2015

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Based on its stated reasoning, the lower court determined that the addition of “new construction, expansion, or alteration of use of a building, etc.” other than “the volume of sewage discharged into a public sewerage system” under Article 35(1) of the former Enforcement Decree of the Sewerage Act (amended by Presidential Decree No. 25478, Jul. 16, 2014; hereinafter the same shall apply) was merely concrete based on the purport of Article 61(1) of the former Sewerage Act (amended by Act No. 11915, Jul. 16, 2013; hereinafter the same shall apply), which was the mother corporation, and did not seem to exceed the regulatory scope of the mother law.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the limitation of delegated legislation, contrary to what is alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 2 and 3

A. Article 61(1) of the former Sewerage Act provides that a public sewerage management authority may impose, in whole or in part, the cost of remodeling the public sewerage on the owner of a building, etc. that can discharge sewage of more than the quantity prescribed by Presidential Decree into the public sewerage. Article 35(1) of the former Enforcement Decree of the same Act provides that “the owner of a building, etc. that may discharge sewage of more than the quantity prescribed by Presidential Decree into the public sewerage” means a person who intends to newly discharge or increase wastewater more than 10 cubic meters per day by newly constructing, enlarging or altering the use of a building, etc., and further, Article 61(3) of the former Ordinance on the Use of the Public Sewerage requires the owner of a newly constructing or expanding a new structure or expanding the use of sewage with the requirement for imposing an amount borne by an amount borne by an amount borne by the public sewerage management authority to be more than 10/100 of the total volume of wastewater generated by newly constructing or expanding a new structure or expanding its use.

Meanwhile, Article 61(1) of the former Sewerage Act and Article 35(1) of the Enforcement Decree of the former Sewerage Act do not separately provide for the definition of “building, etc.” under the same Act. However, each of the above provisions provides that “building, etc.” may discharge more than a certain quantity of sewage into public sewerage. In addition, Article 27(1) of the former Sewerage Act provides that when the use of public sewerage begins, the owner of the land within the drainage area shall flow sewage into public sewerage and install necessary drainage facilities. The main sentence of Article 34(1) and Article 35(1) of the former Sewerage Act provides that the construction of public sewage treatment facilities shall be installed in cases where the installation of sewage discharge facilities, other than buildings, or the extension of wastewater discharge facilities to a certain scale, or the increase in the quantity of sewage generated by changing the use of sewage to a certain size, it is clear that such construction is not limited to a building if it can discharge more than a certain quantity of sewage into public sewerage. Furthermore, the Ministry of Environment’s announcement of the quantity of sewage generated and the quantity of sewage generated for treatment purposes and its installation.”

Article 2 subparag. 1 of the Industrial Cluster Development and Factory Establishment Act (hereinafter “Industrial Cluster Act”) provides that “factory” means a place of business for conducting manufacturing business prescribed by Presidential Decree and equipped with manufacturing facilities, such as buildings or structures, machinery and equipment forming a manufacturing process of goods, and ancillary facilities, as prescribed by Presidential Decree.” In full view of the contents, form, structure, legislative purpose, etc. of the aforementioned Acts and subordinate statutes related to the Sewerage Act, it is reasonable to deem that “building, etc.” subject to imposition by burden pursuant to Article 61(1) of the former Sewerage Act and Article 35(1) of the former Enforcement Decree of the Sewerage Act includes a factory prescribed in Article 2 subparag. 1 of the Industrial Cluster Act.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On July 19, 2013, the Defendant issued the instant disposition imposing KRW 168,531,200 on the amount borne by the Defendant, applying the rate of 154.9 cubic meters/day of wastewater discharged increased on the basis of the volume of waste specified in the permission for installation of wastewater discharge facilities (report) during five years prior to the time of imposition, on the grounds that the Plaintiff introduced wastewater under the Water Quality and Aquatic Ecosystem Conservation Act into a waste treatment plant.

2) In the instant lawsuit, the Plaintiff sought revocation of the instant disposition by asserting that the amount borne by the Plaintiff under Article 61(1) of the former Sewerage Act and Article 35(1) of the former Enforcement Decree of the Sewerage Act does not constitute new construction, extension, or alteration of use of a building, etc., on the ground that the amount of wastewater discharged increased by at least 10 cubic meters a day due to new construction, extension, or alteration of use of a building, etc., the Plaintiff’s workplace is imposed on the owner of the building, etc.

3) On June 12, 2013, the Defendant notified the Plaintiff of the prior disposition that “The amount of increase in wastewater discharge flowing into the waste water treatment plant due to the new construction, extension, alteration of the purpose of use, alteration of production facilities, etc. of the factory” pursuant to Article 61 of the former Sewerage Act and Article 35 of the former Enforcement Decree of the Sewerage Act should be imposed on the Plaintiff.” However, the Defendant did not make specific arguments as to what content the Plaintiff satisfied the requirements for imposing the amount borne by the burden by newly building, enlarging, or altering the purpose of use of a factory until the closing of

Rather, pursuant to Article 61(1) of the former Sewerage Act until the closing of argument in the lower court, the Defendant asserted that the construction, expansion, or alteration of use of a building, etc. cannot be subject to the requirements for imposing the burden of borne by a person, and the burden of borne by a person may not be imposed solely on the increase of discharged wastewater, or the imposition of the burden of borne by a person shall not be determined depending on whether the building, etc. is newly constructed, expanded, or the alteration of use

4) In addition, even if the evidence submitted by the time the argument of the court below is examined, it is insufficient to recognize not only whether the Plaintiff newly constructed, expanded, or altered the use of a factory, building, etc. subject to the charge borne by an amount borne by an obligor, but also how much the amount of sewage discharged has increased. Even if the imposition requirements are met, it is insufficient to recognize that the amount borne by an obligor lawfully calculated in accordance with Article 61(3) of the former Sewerage Act, Article 24(1) of the Ordinance on the Use of Sewerage in Ulsan Metropolitan City, Ulsan Metropolitan City, and the calculation method of the amount of sewage discharged by

C. Examining these facts in light of the legal principles as seen earlier, in order to impose an amount borne by burden pursuant to Article 61(1) of the former Sewerage Act, the requirements for new construction, expansion, or alteration of use of buildings, etc., and new discharge or increase of sewage more than 10 cubic meters per day should be satisfied. In this case, “building, etc.” includes factories as stipulated in Article 2 subparag. 1 of the Industrial Cluster Development Act. However, in the instant lawsuit, the Defendant failed to assert or prove not only whether the Plaintiff newly constructed, expanded, or altered the use of buildings, etc., including factories, and the amount borne by burden by the Defendant until the closing of argument in the lower lawsuit, namely, the Plaintiff’s construction, extension, or alteration of the use of the buildings, etc., including factories, and thereby, the amount

Therefore, although the reasoning of the judgment below on this part is partly inappropriate, the conclusion that the disposition in this case was unlawful on the ground that it failed to meet the requirements for imposing the amount borne by the burden under Article 61 (1) of the former Sewerage Act and Article 35 (1) of the former Enforcement Decree of the Sewerage Act, is just. Contrary to the allegations in the grounds of appeal, the court below did not err in the misapprehension of legal principles on the ambiguous interpretation of subordinate norms, the construction and extension of buildings, etc., the concept of change of use, etc., or the ex officio examination of the administrative litigation, which affected the conclusion

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)