【Holding】
[1] Purport of Article 25 of the Wastes Control Act in establishing a system of notifying whether a waste treatment business plan is suitable prior to the permission for a waste treatment business
[2] Where the location, etc. of a waste treatment facility that constitutes an infrastructure facility under the former National Land Planning and Utilization Act and thus requires an urban or Gun management plan decision conflicts with the criteria for deciding waste treatment and recycling facilities under Article 43(2) of the said Act and Article 157 of the Rules on the Standards for Decision, Structure, and Installation of Urban or Gun Planning Facilities, whether a notice of unsuitability may be issued with respect to the waste treatment business plan concerning such facility on the basis of Article 25(2)2 of the Wastes Control Act (affirmative)
【Summary of Decision】
[1] The purport of Article 25 of the Wastes Control Act in establishing a system of notifying whether a waste treatment business plan is suitable prior to the permission for a waste treatment business is that, since a person intending to conduct a waste treatment business would suffer enormous economic and time losses if the person installed facilities, etc. on his or her own and applied for permission, only to be refused permission at the permission stage because the business plan was found inappropriate, the system seeks to prevent such losses and, at the same time, to have the permitting authority review the waste treatment business plan in advance and issue a disposition notifying whether it is suitable, so that at the later permission stage the authority may promptly process the permission by reviewing only the remaining permission requirements. Therefore, at the stage of reviewing whether a waste treatment business plan is suitable, if there is a compelling public interest necessity that would make it difficult to grant permission for the waste treatment business even if the facilities, equipment, technical capabilities, etc. in accordance with the notice of suitability were later met, having the authority determine whether the waste treatment business plan is suitable in consideration of such circumstances not only conforms to the purport of the above system but also enhances trust in the administration. In addition, the grounds under the subparagraphs of Article 25(2) of the Wastes Control Act, which are prescribed as matters to be reviewed when notifying whether a waste treatment business plan is suitable prior to the permission for a waste treatment business, may be regarded as intended to enhance the transparency and legality of administrative action concerning the notice of whether a waste treatment business plan is suitable, which has significant meaning as a preliminary decision procedure for the permission for a waste treatment business, by more specifically and clearly prescribing the scope and standards for the exercise of discretion.
[2] In light of the contents of Article 2 subparag. 4(c), subparag. 6(g), and subparag. 11(a), Article 29(1), and Article 43(2) of the former National Land Planning and Utilization Act (before being amended by Act No. 20234, Feb. 6, 2024; hereinafter the "former National Land Planning Act"), Article 157 of the Rules on the Standards for Decision, Structure, and Installation of Urban or Gun Planning Facilities (hereinafter the "Urban Planning Facilities Rules"), and Article 25(1) and (2)2 of the Wastes Control Act, together with the relevant legal principles, it is reasonable to hold that where the location, etc. of a waste treatment facility that constitutes an infrastructure facility under the former National Land Planning Act and its subordinate statutes and thus requires an urban or Gun management plan decision conflicts with the criteria for deciding waste treatment and recycling facilities under Article 43(2) of the former National Land Planning Act and Article 157 of the Urban Planning Facilities Rules, a notice of unsuitability may be issued with respect to the waste treatment business plan concerning such facility on the basis of Article 25(2)2 of the Wastes Control Act. The specific reasons are as follows.
① The reason Article 25(2)2 of the Wastes Control Act requires that whether a waste treatment business plan is suitable be notified after reviewing, inter alia, "whether the location, etc. of the waste treatment facility conflicts with other Acts" is to review such conflict in advance, with the purport of preventing enormous economic and time losses that would arise if a waste treatment facility could not be installed or operated at the stage of permits and licenses for the installation and operation of the waste treatment facility on the ground that it conflicts with statutes restricting the installation and operation of waste treatment facilities. Accordingly, "other Acts" under Article 25(2)2 of the Wastes Control Act include "all statutes restricting the installation and operation of waste treatment facilities, such as statutes concerning permits and licenses for the installation and operation of waste treatment facilities."
② In the case of a waste treatment facility that constitutes an infrastructure facility under the former National Land Planning Act and its subordinate statutes, an urban or Gun management plan decision is required for its installation, and Article 43(2) of the former National Land Planning Act and Article 157 of the Urban Planning Facilities Rules, which are the criteria for deciding waste treatment and recycling facilities concerning the location, etc. of waste treatment facilities, apply to the urban or Gun management plan decision concerning such facility. Article 43(2) of the former National Land Planning Act and Article 157 of the Urban Planning Facilities Rules are statutes restricting the installation and operation of waste treatment facilities and constitute "other Acts" with which it must be reviewed, pursuant to Article 25(2)2 of the Wastes Control Act, whether the location, etc. of a waste treatment facility conflicts.
③ Meanwhile, the former Guidelines for Processing Waste Treatment Business Permits (Ministry of Environment Established Rule No. 609, effective June 27, 2017), which the Ministry of Environment (now the Ministry of Climate, Energy and Environment) prepared to prescribe matters necessary for processing affairs concerning permission for waste treatment businesses, etc. under Article 25 of the Wastes Control Act, also prescribe the "National Land Planning and Utilization Act" as one of the "other statutes" to be reviewed in relation to a notice of suitability of a waste treatment business plan.
【Referenced Statutes】
[1] Article 2 subparag. 4(c), subparag. 6(g), and subparag. 11(a), Article 29(1), and Article 43(2) (see current Article 43(3)) of the former National Land Planning and Utilization Act (before being amended by Act No. 20234, Feb. 6, 2024); Article 157 of the Rules on the Standards for Decision, Structure, and Installation of Urban or Gun Planning Facilities; Article 25(1) and (2)2 of the Wastes Control Act [2] Article 2 subparag. 4(c), subparag. 6(g), and subparag. 11(a), Article 29(1), and Article 43(2) (see current Article 43(3)) of the former National Land Planning and Utilization Act (before being amended by Act No. 20234, Feb. 6, 2024); Article 157 of the Rules on the Standards for Decision, Structure, and Installation of Urban or Gun Planning Facilities; Article 25(1) and (2)2 of the Wastes Control Act
【Referenced Precedents】
[1] Supreme Court Decision 2011Du12283, November 10, 2011 (Gong2011Ha, 2572)
(Source: Supreme Court Decision 2023Du36473, August 13, 2026 | Judicial Information Disclosure Portal, Supreme Court of Korea)
2026. 10. 26. · By Attorney Dongwoo Shin
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