조례에 의한 상수도 시설분담금 부과의 위법성 -대법원 2021. 4. 29. 선고 2016두57359 판결-

Abstract

The Supreme Court decision (2021. 4. 29. 2016Du57359) is meaningful in that this decision laid out the law on the water supply facility contribution Imposed by the local government ordinance, and established itself as a precedent for other similar cases scattered in several courts. In addition, this decision is also important in relation to the interpretation of Article 138 of the Local Autonomy Law. Although I appreciate the meaning and importance of this decision, it is difficult to agree with the judgment that local government can enact ordinance imposing water supply facility contribution based on Article 138 of the former Local Autonomy Act. The ordinance violates the Waterworks Act and should be regarded as invalid. Article 70 of the Waterworks Act stipulates that the water service provider shall bear the cost of installing water supply facilities. This article is intended to fulfill the water supply obligations borne by water service provider in the light of the principle of universal supply of water, and to realize the principle of fairness by reflecting the cost of installing water supply facilities in water prices. Therefore, Article 70 of the Waterworks Act must be observed. The ordinance, which stipulates water supply facility contribution violating Article 70 of the Waterworks Act, is illegal. In addition, the applicant for water supply cannot be subject to the imposition of the contribution because he/she is not a "person who particularly benefits" prescribed in Article 138 of the former Local Autonomy Act, which recognized as the legal basis for the ordinance of water supply facility contribution. Therefore, the ordinance imposing water supply facility contribution on the applicant for water supply violates Article 138 of the former Local Autonomy Act, and even in this respect, the ordinance is illegal. In the case of the Supreme Court decision above, it would be a simply and reasonable conclusion to judge that the ordinance stipulated for water supply facility contribution is illegal and invalid, and that imposition of the contribution based on the invalid ordinance is also illegal.