[1] The form of delegation of authority concerning the improvement order under Article 38 (1) of the Clean Air Conservation Act

[2] Whether criminal punishment may be imposed on a violation of Article 57 subparagraph 8 of the Clean Air Conservation Act if a person fails to comply with an order for a corrective order that is void automatically (negative)

[1] Unless a new municipal ordinance that delegates the authority of the Mayor/Do Governor to the head of a Si/Gun as to the improvement order of running cars after the amendment of the Clean Air Conservation Act (Act No. 4652 of Dec. 27, 1993) was enacted, the improvement order which was made by the head of a Gun without legitimate delegation is null and void as it was made by a person without legitimate delegation.

[2] No criminal punishment shall be imposed against a person who fails to comply with an improvement order of running cars, which is null and void, due to a violation of Article 57 subparagraph 8 of the Clean Air Conservation Act.

[1] Article 38 (1) of the Clean Air Conservation Act / [2] Article 57 subparagraph 8 of the Clean Air Conservation Act

[1] Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995 (Gong1995Ha, 2633) / [2] Supreme Court Decision 90Do966 delivered on July 10, 1990 (Gong1990, 1748) Supreme Court Decision 90Do1709 Delivered on August 18, 1992 (Gong192, 2790)

Defendant

Defendant

Changwon District Court Decision 95No538 delivered on July 28, 1995

The judgment of the court below shall be reversed and the case shall be remanded to the Changwon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the order of improvement under the provisions of Article 38 (1) of the Clean Air Conservation Act (hereinafter referred to as the "Act") on the ground that the order of improvement under the provisions of Article 38 (1) of the Clean Air Conservation Act (hereinafter referred to as the "Act") was proper and invalid since the order of improvement was made without legitimate authority of the Mayor/Do governor. Thus, the order of improvement under the provisions of Article 38 (1) of the Act was issued by the court of first instance that there was an error in violation of Acts and subordinate statutes. The court below found the defendant guilty on the ground that the order of improvement under the name of Yangyang-gun was in violation of the provisions of Article 1027 of the Act, which was enacted under the authority of the Mayor/Do governor or Article 2 (1) of the Rules on Delegation of Affairs at Gyeongnam-do (wholly amended by the Rules No. 2215 of July 21, 1994), and that the defendant violated the provisions of the first instance court's order of violation of Acts and subordinate statutes.

However, Article 38(1) of the Act provides that "if exhaust gas exceeds the permissible emission level of running cars as a result of the inspection of running cars under the provisions of Article 37, the Mayor/Do Governor may order the owner of the relevant automobile to improve it under the conditions as prescribed by the Ordinance of the Prime Minister. In this case, the order for improvement under the provisions of Article 38(1) of the Act is clear that the authority of the Mayor/Do Governor is the authority of the Mayor/Do Governor. In addition, since the authority of the Mayor/Do Governor as to the above order for improvement is autonomous affairs and the Act does not stipulate any ground that it may be delegated to the head of the relevant Si/Gun/Gu, etc., under the provisions of Article 95(1) and (2) of the Local Autonomy Act (amended by Act No. 4789 of Dec. 20, 194), it shall be delegated only to the head of the relevant Si/Gun/Gu, etc., as prescribed by the Ordinance.

Therefore, due to the amendment of the law of December 27, 1993 (Act No. 4652), the provisions of attached Table 1 of Article 2 of the above Regulation on Delegation of Administrative Affairs, which provide that the authority of the Minister of Environment with respect to the above improvement order shall be re-entrusted to the Mayor/head of Si/Gun based on the provisions of Article 54 (1) prior to the amendment (amended by the Presidential Decree No. 14346 of July 26, 1994) and Article 31 (1) 18 of the Enforcement Decree thereof (amended by the Presidential Decree No. 14346 of July 26, 1994), and Article 5 (1) of the Government Organization Act and Article 4 of the Regulations on Delegation and Entrustment of Administrative Authority, which provide that the Governor's authority shall be re-entrusted to the head of Si/Gun based on the provisions of the above Regulation, at the time when the improvement order of this case was made (amended by the law of December 27, 1993).

Thus, unless a new municipal ordinance that delegates the authority of the Mayor/Do Governor to the head of the Si/Gun, etc. regarding the above improvement order after the amendment of the law of December 27, 1993 is enacted, the improvement order of this case is void as it was conducted by the head of the smuggling Gun without legitimate delegation, and further, it shall not be subject to criminal punishment against the defendant in violation of Article 57 subparagraph 8 of the Act.

Nevertheless, the court below did not examine and determine whether the above new ordinances were enacted or not, and held that the improvement order of this case was lawful on the premise that the authority of the Mayor/Do Governor as to the above improvement order was legitimately delegated to the head of Si/Gun pursuant to attached Table 1 of Article 2 of the above Rules on the Delegation of Affairs to Gyeongnam-do shall not be deemed to have committed an unlawful act that affected the judgment due to incomplete deliberation or misapprehension of legal principles, and therefore, the argument to point this out

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

Justices Jeong Jong-ho (Presiding Justice)