(영문) 대구고등법원 2017.7.7.선고 2017나132 판결

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Cases

Plaintiff and Appellant

Defendant, Appellant

The first instance judgment

Conclusion of Pleadings

Imposition of Judgment

Text

Purport of claim and appeal

Reasons

Judges

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(영문) 대구고등법원 2017.7.7.선고 2017나132 판결

채무부존재확인

Cases

2017Na132 Confirmation of Non-existence of Obligations

Plaintiff and Appellant

A Stock Company

Daegu west-gu and 32, Magpo-ro (Ha Dong-dong)

G Representative Director

Law Firm Mai, Attorney Lee Dong-ho, Counsel for defendant-appellant

Defendant, Appellant

Representative C

Chang Law Firm, Attorneys Lee Dong-young, Counsel for the defendant-appellant

The first instance judgment

Daegu District Court Decision 2015Gahap305 Decided January 13, 2017

Conclusion of Pleadings

June 9, 2017

Imposition of Judgment

July 7, 2017

Text

1. Revocation of the first instance judgment.

2. The case shall be transferred to the Daegu District Court Panel Division.

Purport of claim and appeal

1. Purport of claim

on April 13, 2010 for the Defendant’s interim construction waste disposal business license (license number***);

on April 12, 2010, permission for intermediate waste treatment business (permission number*******), and April 12, 2010

He/she has obtained permission for his/her interim waste disposal business (permission number***** *) to the plaintiff's defendant under the permission for his/her interim waste disposal business.

No obligation to dispose of construction waste, obligation to dispose of recycling wastes, nor obligation to dispose of incineration specialized wastes;

n. confirm that it is true.

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff shall be revoked. The defendant's closure of construction on April 13, 2010 against the plaintiff shall be revoked.

Permit for water interim disposal business (license number** - heading*), April 12, 2010, interim disposal of natural waste for self-recycling.

The plaintiff's duty to dispose of construction waste, and rehabilitation under the business permission (number**** - *)

I confirm that there is no obligation to dispose of used wastes.

Reasons

1. Basic facts

A. Plaintiff (the Plaintiff’s waste disposal business transferee 1) Plaintiff (the first trade name was D Co., Ltd., and the trade name was changed to the Plaintiff on December 20, 1998) is the location of facilities for treatment from B head of Gun under the former Wastes Control Act on December 16, 1998.

** Myeon*** * * * * * * 'L') 742 construction waste interim disposal business license (permission number*** -* * *) and 'Act on the Promotion of Recycling of Construction Wastes' (Law No. 7043, Dec. 2, 2003)

31.) Pursuant to Article 2 of the former Construction Waste Recycling Promotion Act, a license was deemed to have been granted under the same Act. ② On February 1, 2000, E Co., Ltd. (hereinafter referred to as “E”) transferred the above construction waste disposal business to E, and ③ on April 13, 2010, he again reported the transfer of the above construction waste disposal business (hereinafter referred to as “the above construction waste disposal business”) to the Plaintiff. The details of the change in the construction waste disposal business license are as follows.

2) On March 17, 200, E received permission for interim waste treatment business (permission number***********) from the head of the Gun on the location of treatment facilities under the former Wastes Control Act. On April 17, 2000, the Plaintiff filed a report on the transfer of the above recycling business (hereinafter “the above recycling business”) to the Plaintiff. The details of the permission for the said recycling business are as follows.

3) On June 30, 2008, E obtained permission for interim waste treatment business (permission number 2008 - No. 2008 - 1) from the head of B/Gun under the former Wastes Control Act *****, and the location of the above treatment facility *********** * 740-1, on April 12, 2010, the plaintiff (representative G) transferred the above interim waste treatment business (hereinafter referred to as the "the above interim waste treatment business") and reported the transfer of the permit person to the plaintiff.

(b) Conclusion of guarantee insurance contracts;

On April 12, 2010 or April 13, 2010, the Plaintiff was transferred from E to E the above construction waste disposal business, the above recycling waste disposal business, and the above incineration waste disposal business (hereinafter collectively referred to as "the instant disposal business," and "the Plaintiff's business place, including the location of the disposal facilities of the instant disposal business," and "the Plaintiff's business place," in order to guarantee the performance of the obligation to dispose of abandoned waste related to the instant disposal business, the Plaintiff is between Seoul Guarantee Insurance Co., Ltd. and the insured on July 26, 2010, and the insurance period between B and B from April 12, 2010 to December 12, 2013.

31. up to 31. Up to the amount of insurance coverage, ① the above construction waste disposal business (276,00,000 won, ② the above recycling waste disposal business (117,936,00 won, ③ the above incineration waste disposal business (57,456, and 00 won) entered into a contract, and was issued the surety insurance policy of this case.

C. At the time of April 2010, the Plaintiff’s final transfer of the instant disposal business from E, and the Plaintiff’s workplace did not dispose of construction waste, recycling waste, and incineration waste, which were not disposed of by the Plaintiff, E, etc., were left neglected considerably.

2) On July 11, 2013, August 8, 2013, 2013, and August 9, 2013, the Defendant confirmed that, as a result of excavation and inspection of E’s local bond employment workplace (*risan**** part) adjacent to the Plaintiff’s workplace, recycled wastes, such as waste kitchen, have been buried, and was recovered on August 9, 2013 and stored in Plaintiff’s workplace (******** ?8) on May 30, 2014, and (**** *2, *2, ***** -8, ****)’s boundary points have been excavated and inspected, and the Plaintiff’s workplace has been buried in the Plaintiff’s workplace.

D. B/Gun’s administrative disposition 1) The Plaintiff continued not to dispose of the abandoned waste at the Plaintiff’s workplace, and the head of B/Gun on October 2011.

24. From October 27, 2014 to the Plaintiff, the Plaintiff issued an order to suspend the instant treatment business and neglect the waste in excess of the period prescribed in the above statutes, on the ground that Article 40(2) of the former Wastes Control Act (wholly amended by Act No. 13038, Jan. 20, 2015; hereinafter referred to as the “former Wastes Control Act”) and Article 43 of the former Act on the Promotion of Construction Wastes (wholly amended by Act No. 13527, Dec. 1, 2015; hereinafter referred to as the “former Construction Waste Promotion Act”). Article 43, etc. of the former Construction Wastes Recycling Promotion Act (amended by Act No. 13527, Oct. 24, 2011; hereinafter referred to as the “former Construction Waste Management Act”) to order the Plaintiff to dispose of the waste at the Plaintiff’s place of business within the insurance period of time on the ground that the Plaintiff ceased to dispose of the waste, etc.

In accordance with the provisions of this case, an order to renew the guarantee insurance contract of this case was issued, but the plaintiff did not perform this order.

3) On June 20, 2014, the head of the Gun held a hearing with the Plaintiff on June 20, 2014, and subsequently revoked the Plaintiff’s instant disposal business license in accordance with Article 27 of the former Waste Management Act and Article 25 of the former Construction Waste Act on the grounds of the Plaintiff’s nonperformance of an order to take waste disposal and an order to renew a guarantee insurance contract.

D. The Plaintiff treated approximately KRW 70 tons of incineration wastes from July 8, 2014 to August 28, 2014, and entirely entrusted the remainder on November 2016, but only partially treated construction waste and recycled waste from the Plaintiff’s workplace.

2) On June 17, 2014, the Defendant filed a claim for the instant guaranteed insurance against Seoul Guarantee Insurance Co., Ltd., but on November 26, 2014, Seoul Guarantee Insurance Co., Ltd. reserved the payment of the instant guaranteed insurance benefit on the ground that the Plaintiff filed the instant lawsuit against the Defendant and disputing the existence and scope of the obligation to dispose of abandoned wastes at the Plaintiff’s place of business.

[Ground of recognition] Facts without dispute, Gap evidence 1-1 through 3-2, 7, 8-2, Eul evidence 1-5, Eul evidence 1-5, evidence 7-1 through 11-2, evidence 13-21, witness of the first instance trial, witness of the first instance trial, witness testimony of the abnormal position, the purport of the whole pleadings

2. Whether the exclusive jurisdiction has been violated;

A. The plaintiff's assertion

The Plaintiff’s claim for confirmation in the instant lawsuit is that there is no obligation to treat construction waste disposal devices, recycling waste disposal, incineration waste disposal, and waste disposal business to the Defendant based on the said construction waste disposal business license, the said business license, the said business license, and the Plaintiff’s construction waste disposal business license for the Defendant. Since the instant lawsuit is a civil lawsuit, the Daegu District Court that rendered the first instance judgment is a legitimate competent court.

On April 2010, the Plaintiff succeeded to the rights and obligations of the instant treatment business from E, and completed the disposal of the wastes remaining in the Plaintiff’s workplace as of April 2010. At present, the wastes left in the Plaintiff’s workplace are merely transferred to the Plaintiff’s workplace or discharged from the Plaintiff’s neighboring land in the Plaintiff’s workplace.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Legal principles

According to the Administrative Litigation Act, ① a lawsuit in relation to a legal relationship based on “the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, or any other similar administrative action,” which is based on “the lawsuit by a party to such legal relationship,” is “the lawsuit by a party to such legal relationship,” and is “the lawsuit by a party to such legal relationship,” (Articles 2(1)1 and 3 subparag. 2 of the Court Organization Act). ② The lawsuit by a party to a public law, as the defendant (Article 39 of the Administrative Litigation Act), and the court of first instance, shall be the administrative court having jurisdiction over the location of the defendant (Articles 9 and 40 of the Administrative Litigation Act), and the case falling under the jurisdiction of the administrative court in an area where an administrative court is not established, shall be subject to the jurisdiction of the principal district court [Article 2 of the Addenda (Act No. 4765, Jul. 27, 199) of the Court Organization Act]

In order to determine whether affairs prescribed by statutes are autonomous affairs or delegated affairs by the head of a local government, the form and purport of the relevant statutes shall be first considered in order to determine whether such affairs are autonomous affairs or delegated affairs by an agency. However, other factors, such as whether the nature of the affairs requires the uniform performance on a national scale, the burden of expenses related thereto, and who is the subject of final responsibility shall also be considered (see Supreme Court Decisions 2013Du36, Dec. 29, 2016; 2013Du45934, Mar. 13, 2014, etc.).

Article 7 of the Administrative Litigation Act provides that a transfer to a competent court shall be made by applying Article 34(1) of the Civil Procedure Act in cases where an administrative litigation is filed in a court where the level of the administrative litigation is different without the plaintiff's intention or gross negligence, and it is desirable in terms of the relief of rights or the economy of litigation to transfer a case to a competent court rather than to dismiss a lawsuit for a violation of jurisdiction is unlawful. Thus, in cases where the plaintiff files a civil suit without any intention or gross negligence, and where the plaintiff files a lawsuit for a civil litigation without any intention or gross negligence, the court of lawsuit must transfer the case to the competent court as an administrative litigation, such as where the procedure and the period of filing the lawsuit are over as an administrative litigation, or where there is no disposition, etc. subject to the administrative litigation, unless the lawsuit has already been filed as an administrative litigation, even if it is obvious that the lawsuit does not have any jurisdiction over such administrative litigation, so long as it is illegal, it shall not be dismissed as an unlawful lawsuit, but shall be transferred to the competent court (see, e.g., Supreme Court

(d) Determination:

1) In full view of the following facts, the instant lawsuit is not a civil lawsuit, but an administrative lawsuit under Article 3 subparagraph 2 of the Administrative Litigation Act, i.e., a party lawsuit under public law.

① The Plaintiff’s filing of the instant lawsuit constitutes “legal relationship based on an administrative disposition” under Article 3 subparag. 2 of the Administrative Litigation Act, namely, the Plaintiff’s filing of the instant lawsuit, based on the said construction waste disposal business license, the said license for the said specialized waste disposal business, the Plaintiff’s duty to dispose of construction waste, the duty to dispose of recycled wastes, and the duty to dispose of incineration waste disposal business to the Defendant. The Defendant is a Party B of the said legal relationship.

② The head of B/Gun, based on relevant statutes, such as the former Wastes Control Act and the former Construction Waste Act, issued a permit for the instant disposal business, a revised permit for the instant disposal business, and an order to take measures to dispose of wastes on October 24, 201. The Plaintiff asserts that the Plaintiff’s obligation to dispose of wastes was generated by the foregoing administrative disposition, but the present is not nonexistent.

(3) Article 9 (2) 2 (i) and Article 10 (2) of the Local Autonomy Act, Article 8 of the Enforcement Decree of the Local Autonomy Act.

[Attachment 1] According to the provisions of Article 2(1) [Attachment 1] of the Ordinance on the Delegation of Affairs concerning Gyeongbuk-do, the above provision shall apply.

10. Matters pertaining to the waste disposal business, such as the order to take measures to dispose of waste on 24. 24. Inasmuch as the matters pertaining to the waste disposal business belong not to the agency delegated affairs but to the autonomous affairs of the Defendant, a local government

2) The instant lawsuit is an administrative litigation, and the competent court of the first instance of the instant lawsuit is the principal court of the Daegu District Court. Thus, the judgment of the court of first instance in the Daegu District Court is unlawful.

3. Conclusion

Since the judgment of the first instance is unlawful, it shall be revoked and the case shall be transferred to the Panel Division of the Daegu District Court, the competent court, and it is so decided as per Disposition.