Whether the ground for adjusting emission dues under Article 17-13 (1) 1 of the Enforcement Decree of the same Act is applicable where the plaintiff's water pollution prevention facilities are operated normally and this fact is reported to the Do Governor before the improvement order under the former Environmental Preservation Act is issued (affirmative)

Article 17-13 (1) 1 of the former Enforcement Decree of the Environmental Conservation Act, which provides one of the grounds for the adjustment of discharge dues, provides that "in the case of a change in the discharge period of pollutants or pollutants which are the basis for calculating the dues as the implementation of the order is completed within the scheduled date of the completion of the order of improvement, the order of improvement is issued, and there is no reason to exclude the case where the improvement work is completed in advance and the report is made in accordance with the order of improvement that will be in the future before the expiration of the order of improvement. Therefore, if the plaintiff's factory's water pollution prevention facilities were operated normally due to the plaintiff's improvement work before the order of improvement is issued by the Do governor and this day

Articles 17 and 19-2 of the former Environmental Preservation Act (repealed by the implementation of the Framework Act on Environmental Policy (Act No. 4257), Articles 17-9(1) and 17-13(1)1 of the former Enforcement Decree of the Environmental Preservation Act

Attorney Lee Ho-chul et al., Counsel for the defendant-appellant-appellee and two others

Attorney Lee Dong-ho, Counsel for the plaintiff-appellant

Seoul High Court Decision 89Gu7391 delivered on May 9, 1990

The original judgment shall be reversed and the case shall be remanded to the Seoul High Court.

As to the Grounds of Appeal

According to the reasoning of the judgment of the court below, in case where the business operator voluntarily reported the discharge of pollutants to the head of the environmental office and did not make a voluntary report with regard to the period of discharging pollutants, which serves as the basis for calculating the discharge dues under Article 17-9 (1) of the Enforcement Decree of the Environmental Conservation Act, the court below determined that the Plaintiff did not make voluntary report despite the degree of water-speed pollutants discharged from the Plaintiff’s factory’s factory exceeds the permissible emission levels stipulated in Article 17 of the Environmental Conservation Act, and thus, in this case, the Plaintiff’s water pollution prevention facility’s improvement order was discovered by the Defendant as the Plaintiff’s assertion, and even if the Defendant reported it to the Defendant on the same day, the period of calculating the discharge dues to be imposed by the Defendant on the Plaintiff from the date of collecting the pollutants to the date of the order of improvement and the order of improvement under Article 17 of the same Act was executed, and thus, the Defendant’s imposition period of the discharge dues was lawful.

However, Article 17-8 through 12 of the Enforcement Decree of the Environmental Preservation Act of the Republic of Korea provides for the method and criteria for calculating emission dues in detail, and Article 13 (1) of the same Act provides that "in the event that there are grounds falling under any of the following subparagraphs, the head of the environmental office shall calculate dues again and adjust dues, but if there is any difference between the amount already paid and the adjusted amount, the difference shall be imposed or refunded," and subparagraph 1 provides that "in the event that the improvement or order has not been completed by the date of expiration of the improvement or the scheduled date of completion of the implementation of the order under Article 17-9 (1) 1 or 2, or the discharge period of pollutants or pollutants which form the basis for calculating dues has changed due to the completion of the implementation of the order within the same period, the improvement or implementation of the order has not been completed within the same period, and thus, it cannot be viewed that the improvement order has not been made in accordance with Article 17 (1) 1 of the Enforcement Decree prior to the issuance of the order and there is no reason to exclude it.

The court below held that the defendant's disposition of this case which calculated the plaintiff's discharge dues in the same manner should be lawful when the period for discharging pollutants necessary to calculate the discharge dues should be from the date of collecting pollutants to the date on which the plaintiff reported that the order was complied with. The court below erred in the misapprehension of legal principles as to the calculation of discharge dues under the Environment Conservation Act and the Enforcement Decree of the same Act, and there is a ground to point this out.

Therefore, the judgment of the court 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 Yoon Young-young (Presiding Justice)