폐기물처리시설 관련 판례 검토— 대법원 2017. 11. 14. 선고 2017도7492 판결 및2017. 10. 31. 선고 2017도9582 판결을 중심으로 —

In 2017, Supreme Court of Korea made two very important decisions on the hazardous waste acts. They are Supreme Court Decision 2017Do7492 decided on Nov.14,2017 (“2017Do7492”) and Supreme Court Decision 2017Do9582 decided on Oct.31.2017(“2017Do9582”). “2017Do7492” considered who would be qualified for “operators of hazardous waste management facilities” and “2017Do9582” is about whether person who bought facilities’ properties, specifically lands through public auction would succeed to “rights and duties of the operators.” 2017Do7492 dealt with the joint punishment provisions between the corporate body and its executive director. In addition, when it comes to “operators of the facilities” who should be subject to liabilities of the hazardous waste management acts, this paper studies the solid waste management act of Michigan, U.S. to compare the decisions of Korea's Supreme Court Decisions. The decision is considered to be reasonable, but legislative enactments or new judicial decisions are required not to punish low level employees under this joint punishment clause. The main issue of 2017Do9582 are whether or not transfer of solid waste management facilities include public auctions. Supreme Court has defined the transfer very limited to civil law, which could be possible only by contract. Generally, auction is considered to dispose only property not accompanying rights and duties. The sold waste management act of Korea was amended as No. 103859 on July 23. 2010. This amendment makes it clear that a person purchasing only facilities through private or public auctions are in succession to rights・duties of a former owner. The case requires “interpretation in law”, which reconsider a definition of “disposition” not in the civil law but administrative law. If the case had focused on the not article 32 but article 24 and then it had noticed that the article limited to business not property as subject matter of transfer, the court might have held to be presumed innocence. The Court made it clear that “definition of transfer” does not include public auction, thus holding to be presumed innocence. By the way, the second clause of Article 33 public was amended to regulate “public auction” but this was meant to make sure that transfer of property of facilities shall accompany full sanction of operation. Therefore, in my opinion, this decision might be unreasonable. Article 32 could not be applied for transfer of property because the article regulates transfer of business. The Court should consider not article 32 but article 24.