물이용부담금의 헌법적 정당성에 대한 검토 - 헌법재판소 2020. 8. 28. 선고 2018헌바425 결정에 대한 평석 -

In the subject decision, the Constitutional Court determined that the water use charge under the Act on the Improvement of Water Quality and Support for Residents in the Han River Basin is a charge for the purpose of financing and a beneficiary charge, and then reviewed whether the charge for the purpose of financing meets the constitutional justification requirements in the section on the appropriateness of means under the principle of prohibition of excessiveness and the section on the examination of rationality under the principle of equality, and determined that it does not violate them. This can be seen as following the legal theory on the constitutional justification requirements of the so-called charge that the Constitutional Court has taken up so far. However, if the water use charge is to recover the cost from the final users of tap water who directly and closely benefit from the improvement of water quality of the water source, as the Constitutional Court itself has ruled, it is questionable whether this contradicts the previous ruling of the Constitutional Court in other cases that the charge is not conceptually in a relationship of counter-performance and consideration. The starting point for resolving these questions is to specify the constitutional justification requirements for the burden fee according to the characteristics of each quasi-tax such as special charge, usage fee, and contribution. This article attempted to do so and concluded that the water use charge is a usage fee and that its imposition clause does not satisfy the constitutional justification requirements for usage fee. The subject decision came to a different conclusion, but rather, more important than the appropriateness of the conclusion is that the problem with the Constitutional Court’s charge legal thery was revealed through the subject decision.