Revocation of Disposition for Return, etc. of Written Request

2. The costs of appeal shall be borne by the Defendant.

The defendant's rejection of an application for the designation of a liquefied petroleum gas filling business operator within the development-restricted zone dated July 25, 2014 against the plaintiff, and the rejection of the application for the building report within the development-restricted zone dated October 7, 2014 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked and the plaintiff's claim is dismissed.

A. According to Article 12(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones and Article 13(1) [Attachment Table 1] 5(e)(10) of the Enforcement Decree of the same Act, in order to install rest areas, gas stations, and liquefied petroleum gas filling stations for automobiles in development restriction zones, the Special Self-Governing City Mayor, Special Self-Governing Province Governor, and the head of Si/Gun/Gu shall obtain permission from the head of Si/Gun/Gu, and the head of Si/Gun/Gu shall establish a plan for the placement of rest areas, gas stations,

B. On June 16, 2014, the Defendant, based on the foregoing statutes, publicly announced the allocation plan and installation standards for the automobile charging stations and rest areas to be placed within the development-restricted areas within the jurisdiction of the jurisdiction as follows (the Busan Metropolitan City Maritime Daegu Public Notice B; hereinafter referred to as the “instant public notice”).

Article 2 (Placement Plan) (1) Installation and inspection routes according to the plan for the placement of liquefied petroleum gas charging stations for automobiles in development restriction zones and resting areas are as specified in attached Table 1. (2) Allocation quota, etc. referred to in paragraph (1) may not be less than or less than the fixed number actually allocated as the maximum available number of water.Article 4 (Establishment and Permission Criteria).

Article 6 (Public Notice and Receipt) ① Public Notice for 15 days from the date of public notice, and the receipt period shall be received from three days before the date of public notice (excluding Saturdays and Sundays) to the date of public notice. (Attachment Table 1) The planning for charging stations for liquefied petroleum gas in development-restricted areas, planning for placing resting places, liquefied petroleum gas charging stations and disposition plans for rest stops (drafts) shall be prepared.

C. On July 2, 2014, according to the instant notice, the Plaintiff filed an application for designation of a liquefied petroleum gas charging station (hereinafter “instant application”) with the Defendant on July 2, 2014, using Busan Shipping Daegu X and six parcels (hereinafter “instant application site”). However, on July 25, 2014, the Defendant rejected the said application for the following reasons (hereinafter “instant disposition”) (hereinafter “instant disposition”).

1) The public in the case of an application for the designation of the filling station in question is adjacent to a large-scale public-use facility, the main entrance of theY market, which is a large-scale public-use facility used by many citizens and distribution workers, about 20 meters wide and thus gas (exp

2) In view of the fact that there is a high risk of undermining safety and interests, and that there is a high risk of increasing traffic congestion as it overlaps with Y market entry vehicles, 3) in the application site the charging storage facilities are adjacent to roads excessively adjacent to roads, and there is a high risk of external shock of charging storage facilities, such as traffic accidents, to lead to a high risk of gas (explosion) accidents, it is not appropriate to be the place for designating the charging station, which is not suitable for the application site where there is a high risk of gas (explosion) accidents to lead to external shock of charging storage facilities, such as traffic accidents;

D. After October 6, 2014, the Plaintiff reported to the Defendant the new construction of a liquefied petroleum gas filling station on the ground of the instant application site. However, on October 7, 2014, the Defendant rejected the said report on the ground that the instant application was rejected and the relevant building report was not possible (hereinafter “instant Disposition 2”). E. The Plaintiff appealed against this and filed an administrative appeal with the Busan Metropolitan City Administrative Appeals Commission, but was dismissed on November 19, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 10, 12 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether a disposition No. 1 of this case is lawful

A. The plaintiff's assertion

(1) The Defendant is obligated to present the basis and reason for the administrative disposition pursuant to Article 23(1) of the Administrative Procedures Act. However, the Defendant’s reason for the disposition of this case, which the Defendant established, is not enough to know what is the applicable law of the first disposition of this case. Thus, the Defendant’s disposition of this case was erroneous in failing to present the ground for the disposition

(2) Although Article 4(2) of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 12297, Jan. 21, 2014; wholly amended by Act No. 13089, Jan. 28, 2015; hereinafter referred to as " Liquefied Petroleum Gas Act") provides that "Detailed matters concerning the requirements under Article 4(1)1 through 3 shall be prescribed by municipal ordinance of the pertinent local government," the defendant is not obliged to enact municipal ordinances under the above provision, and thus, it is impossible to return the instant application by arbitrarily applying Article 4(1) of the same Act until the detailed criteria are prescribed by municipal ordinances.

(3) The Plaintiff filed the instant application in compliance with the disposition plan and installation standards stipulated in the instant public notice. In particular, the Plaintiff’s failure to return the Plaintiff’s application on the ground of public safety and interest, etc., in breach of the principle of self-regulation, the principle of trust protection, the principle of good faith, and the principle of equality, even though the Defendant, after sufficiently reviewing the public safety, interest, etc. in advance, designated one of seven places as a candidate site as a business site.

(4) The Defendant asserts that Article 4(1)1 and 3 of the Liquefied Petroleum Gas Act is in accordance with the relevant laws and regulations related to the grounds for the instant disposition. However, since the instant application satisfies all the safety standards under relevant laws and regulations, such as the Notice of this case and the Liquefied Petroleum Gas Act, it cannot be deemed that there exists any ground for non-permission under Article 4(1)1 of the Liquefied Petroleum Gas Act, and ② there are many pedestrians entering the Y market southwestwest side where the instant application is filed, and the self-employed who purchases and sells agricultural products wholesale at retail use the new wall market. As such, even if a charging station is installed in the instant application, it cannot be deemed that there is a possibility of increasing traffic congestion even if the instant application satisfies the safety standards and distance, so long as the instant application meets all the safety standards and distance standards, it cannot be deemed that the Defendant’s ground for non-permission under Article 4(1)1 and 3 of the Liquefied Petroleum Gas Act exists.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

In full view of the following facts, the evidence Nos. 1, 2, 4, and 5, the evidence Nos. 5, and the results of the on-site inspection by the court of first instance, the following facts may be acknowledged.

(1) There are four entrances with a site area of 151,642 square meters, and a total floor area of a building of 80,028 square meters, and Dong literature is in contact with AB, Seomunmun, AC, AD, and North Seomun, respectively.

(2) The Defendant selected and publicly announced 7 candidate sites where it is possible to place liquefied petroleum gas charging stations and rest areas through the “ Liquefied petroleum gas charging station and rest area arrangement plan” included in the instant public notice. Of this, ① the above arrangement plan Nos. 1 C (Time: D: closing point) is about 700 meters in AC, including roads adjacent to the Y market literature, ② the F (Time: G, closing point: H:) under paragraph 2 of the above arrangement plan is about 2.2 meters in AA, including roads adjacent to the Y market northwest, ③ the above arrangement plan Nos. 4 (Time: M: N:) is located in approximately 700 meters in AB, including roads adjacent to the Y market, and ④ the above arrangement plan Nos. 5 (Time: P: 5) is located in the location where the land in this case is located, and the Defendant is eventually at least 10 meters in AD market.

(3) On the other hand, the instant application is abutting on the 5th line road from the width of 20 meters, and there is a Y market entrance and exit exit in the Y market at a place less than 30 meters away from the width of the above road, and there is a Y market building at a place less than 75 meters away.

(4) According to the instant application, an underground burial storage facility of 19.9t size is to be installed as a storage facility among facilities for filling liquefied petroleum gas. According to Article 3(4) of the Liquefied Petroleum Gas Act, Article 10(1)1 of the Enforcement Rule of the same Act, Article 3 [Attachment Table 3] of the Notice on Permission for and Facility Criteria of Gas Business Entities in Busan Metropolitan City, the detailed criteria for reporting on the permission for and facility standards for gas business entities in accordance with Article 3 [Attachment Table] of the said Notice, the above liquefied petroleum gas storage facility shall be 18.9m from the outer surface to the boundary of the business, 37.8m from the protective facility to the outer surface of the business, 24m from the outer surface of the charging facility to the boundary of the business, 48m from the protective facility, and 4m or more from the outer surface of the charging facility to the road boundary. In the

D. Determination

(1) Whether the failure to present the reason is illegal

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall, when taking a disposition, present the grounds and reasons therefor to the parties, and the purport thereof is to exclude arbitrary decisions of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure. Therefore, in full view of the contents stated in the written disposition and relevant statutes, and the overall process, etc. up to the time of the disposition, where it is sufficiently possible to find out which grounds and reasons were the parties involved at the time of the disposition, and where it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, the disposition cannot be deemed unlawful due to the failure of specifying the grounds and reasons for the disposition (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14, 2013).

In the case of this case based on the above legal principles, although the defendant did not specifically state the grounds for the disposition at the time of the disposition No. 1 of this case, as long as the defendant specifically stated the grounds for the disposition No. 1 of this case as the grounds for the disposition of this case, it seems that the plaintiff could have sufficiently known the grounds for the disposition No. 1 of this case. In light of the progress of the lawsuit of this case, it is recognized that there was no particular obstacle to the plaintiff's moving to the administrative remedy procedure. Thus, it cannot be deemed that the disposition No. 1 of this case violated

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether the enactment of the defendant's ordinance was illegal

At the time of the first disposition of this case, it is recognized that the defendant did not set the detailed criteria for permission under Article 4 (2) of the Liquefied Petroleum Gas Act as a municipal ordinance at the time of the first disposition of this case, but even in this case, the defendant can determine whether to grant permission in accordance with the criteria for permission under Article 4 (1) of the same Act. Thus, even if the defendant did not enact a municipal ordinance on the first disposition of this case, it cannot be viewed that the above disposition

Therefore, the plaintiff's assertion on this part is without merit.

(3) Whether the principle of trust protection is violated

(A) In general, in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion is justified and there is no cause attributable to the individual; third, the individual should have trusted and trusted the opinion statement; fourth, the administrative agency's disposition contrary to the above opinion statement should result in infringing the individual's interest in trust; fourth, if any administrative disposition satisfies these requirements, it is unlawful as an act contrary to the principle of the protection of trust, unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 98Du19070, Mar. 9, 199).

(B) Therefore, in light of the following circumstances, it is reasonable to view the instant disposition as an unlawful disposition contrary to the Plaintiff’s legitimate trust, in light of the following circumstances acknowledged in light of the foregoing facts, as seen earlier, as seen in the instant case’s health room, and as seen above, Gap’s evidence Nos. 15 and

1) In light of the fact that Article 2(2) of the Notice of this case provides that "a fixed number which is actually placed in accordance with a plan for the placement of liquefied petroleum gas charging stations for automobiles, rest areas, etc. within development-restricted areas may be less or less than this," and Article 4(5) provides that "a permission for liquefied petroleum gas charging stations, rest areas, and facility standards within the development-restricted areas shall conform to the relevant Acts and subordinate statutes, such as the Liquefied Petroleum Gas Act", it cannot be deemed that the Defendant reviewed all the relevant Acts and subordinate statutes, such as the Liquefied Petroleum Gas Act, before the Defendant enacted the Notice of this case. Thus, even if the Plaintiff filed the application of this case by making one of the seven sites stipulated in the Notification of this case as business target, it is difficult to view that the Defendant is obligated to accept the application without fail.

However, examining the reasons for the disposition of this case in detail, the main reasons for the disposition of this case by the defendant are likely to harm the safety and interests of many citizens using the Y market in the event of gas explosion accidents because the site of this case is adjacent to the Y market, which is a large-scale public use facility. However, the fact that the Y market is a large-scale public use facility is likely to cause traffic congestion and traffic accidents, etc. However, the defendant appears to have sufficiently been aware of it prior to the public notice of this case. ② The fact that gas leakage or gas explosion accident occurred in the gas charging station is likely to cause great damage to the surrounding area. ③ Therefore, the defendant appears to have sufficiently considered the danger of installing the gas charging station in the vicinity of the Y market prior to the public notice of this case. ④ However, considering the fact that the defendant's selection of at least seven candidates place to place to place the gas charging station through the public notice of this case, even if it appears that it would be possible to install the Y market in the vicinity of the above public notice of this case.

2) Article 4(1) of the Liquefied Petroleum Gas Act provides that "the head of a Si/Gun/Gu shall grant permission to an application for permission or permission for alteration pursuant to Article 3(1) through (3) or (6) except where the details of the application fall under any of the following cases." 1. Where it is determined that the commencement or alteration of a business is likely to hinder the prevention of harm to people's lives and property and the prevention of disasters, 2. Where it is deemed that there is no financial resources and technical capabilities necessary to properly conduct the business, 3. Where the establishment of the relevant facility is prohibited in consideration of road links, urban planning, population concentration, etc., as a result of the technical review by the Korea Gas Safety Corporation under Article 28 of the High-Pressure Gas Safety Control Act, 4. Meanwhile, Article 4(2) of the Liquefied Petroleum Gas Act provides that "the detailed matters concerning the requirements under subparagraphs 1 through 3 shall be prescribed by ordinances of the relevant local government," but at the time of the instant disposition, the defendant did not enact ordinances under Article 4(2) of the Liquefied Petroleum

However, the grounds for non-permission under Article 4 (1) 2 through 4 of the above Liquefied Petroleum Gas Act are relatively clear that its requirements are relatively easily predicted through other provisions of the Liquefied Petroleum Gas Act or relevant laws and regulations. However, in the case of the grounds for non-permission in subparagraph 1, it seems difficult for the defendant to easily anticipate, in any case, whether or not it impedes the protection of people's lives and property damage and the prevention of disasters. However, if the defendant did not enact detailed matters concerning the grounds for non-permission in subparagraph 1 as a district where gas charging stations are designated as a district where gas charging stations are installed in the vicinity of the Y market in the situation where the defendant did not enact a municipal ordinance on the grounds for non-permission in subparagraph 1, it is difficult for the plaintiff to believe that the plaintiff can install gas charging stations in the vicinity of the Y market including the application site in this case, and it does not seem to be reasonable to believe that such grounds for non-permission are the causes attributable to the plaintiff that caused such trust.

3) The Plaintiff filed the instant application with the trust of the instant public notice that gas charging stations can be installed in the vicinity of the Y market. The Defendant rendered the instant first disposition against the instant public notice to the effect that, in fact, it is impossible for the Defendant to install gas charging stations in the vicinity of the Y market on the ground that the Y market, which is the fact of the late public notice, is a facility used by the public. This resulted in infringement of the Plaintiff’s personal interests, such as the Plaintiff’s property rights.

4) In the event that a gas charging station is installed in the instant application form, it is difficult to readily conclude that the prevention of harm to the life and property of the people and the prevention of disaster may occur, while it is clear that the Plaintiff is infringed on property interest by the instant disposition No. 1. Furthermore, considering the fact that most automobiles using liquefied petroleum gas are automobiles for public transportation, automobiles for the disabled and automobiles for the disabled, and currently gas filling stations for automobiles, it is difficult to deny the need for public interest to increase the convenience of liquefied petroleum gas users by additionally installing a gas charging station in the Defendant’s jurisdiction.

(C) Therefore, the Plaintiff’s assertion on this part is with merit.

(4) Whether there is a ground for disposition under Article 4(1)1 of the Liquefied Petroleum Gas Act

(A) The Plaintiff’s application of this case satisfies both the facility standards and technical standards under the relevant statutes. However, Article 4 of the Liquefied Petroleum Gas Act provides for permission standards for a liquefied petroleum gas charging business. The legislators are deemed to establish safety standards under relevant statutes, such as the Liquefied Petroleum Gas Act, by comprehensively taking into account the risk of explosion by liquefied petroleum gas, the scope of damage, etc., and thus, if the application of this case satisfies all the permission standards under the relevant statutes, such as safety distance, etc., the application of this case may be deemed not to be contrary to public

(B) In addition, Article 4(1) of the Liquefied Petroleum Gas Act provides that an administrative agency shall permit the installation of a gas charging station unless there are reasons falling under any of the following subparagraphs. Thus, unless the defendant proves that the commencement or alteration of business, which is a reason under subparagraph 1, constitutes "cases where it is deemed that there is a concern for preventing harm to the protection of people's lives and property and preventing occurrence of disasters", the defendant shall accept the plaintiff's application and shall not refuse the permission only on the ground that there is a concern for harm to

(C) However, the Y market is located between the instant application site and the road, entrance and parking lot, and approximately 75 meters far far far far far far far exceeding 48 meters long-distance, which is required by the Enforcement Rule of the Liquefied Petroleum Gas Act, and there is no evidence to prove that there is a gas filling in the instant application site. Thus, the Defendant’s assertion that there is a high risk of causing a traffic accident in the event of gas (explosion) accidents involving filling and storage facilities due to traffic accidents, etc. is merely a remote danger and lack of specific grounds.

(D) On the other hand, the defendant alleged that liquefied petroleum gas of 19.9 tons as applied by the plaintiff could be damaged by flames and heat to the extent exceeding 75 meters if it were steamed explosion or blove explosion. Accordingly, as a result of the technical review conducted by the Korea Gas Safety Corporation, the plaintiff was judged to have judged that there is no problem in the stability of gas filling station facilities to be installed by the plaintiff, and the possibility of the accident alleged by the defendant is very rare. However, in preparation for the plaintiff, the defendant is expected to install a concrete fireproof wall at a height of 50 centimeters and height of 1.5 to 2 meters in the remaining part of the Y market boundary of the application site of this case, except for the power and access roads, even though the technical review conducted by the Korea Gas Safety Corporation and the plaintiff's additional safety assurance plan, there is no evidence as to whether it still causes considerable damage to the citizens using the Y market due to explosion and heating due to explosion, etc.

(E) Therefore, the data submitted by the Defendant alone is insufficient to deem that there exists a ground for disposition under Article 4(1)1 of the Liquefied Petroleum Gas Act, and there is no other evidence to acknowledge it. Therefore, this part of the Plaintiff’s assertion is

(5) Whether there is a ground for disposition under Article 4(1)3 of the Liquefied Petroleum Gas Act

(A) Article 4(1) of the former Safety Control and Business of Liquefied Petroleum Gas Act (amended by Act No. 12297, Jan. 21, 2014) provides that permission shall be granted for liquefied petroleum gas charging business if all the requirements in each of the following subparagraphs are met. Article 4(1) of the same Act provides that "no business facility shall be installed in an area where construction is deemed inappropriate in consideration of connecting roads, urban planning, population concentration, etc." However, Article 4(1) of the Liquefied Petroleum Gas Act provides that permission shall be granted except in any of the following cases. Article 3(3) of the same Act changes into "where construction of the relevant facility is installed in an area where construction is prohibited in consideration of road connection, urban planning, population concentration, etc." In light of the developments leading up to the amendment and the provisions before and after the amendment, the administrative agency should take into account the “area where construction is prohibited in advance,” and it is reasonable to take into account the grounds for non-permission permission as prescribed in Article 4(1)3) of the same Act.

(B) However, through ordinances, notifications, etc., the Defendant did not designate a specific area as a prohibited area against the installation of gas charging stations on the grounds of population concentration, traffic congestion, or traffic accidents. Rather, as seen earlier, the instant application is only an area where the Defendant permitted the installation of gas charging stations through the instant public notice.

(C) Therefore, this part of the plaintiff's assertion is well-grounded, since the grounds for the disposition of this case, which the defendant is internal tax, cannot be deemed to exist as the grounds for the disposition under Article 4 (1) 3 of the Liquefied Petroleum Gas Act.

(6) Sub-committee

The first disposition of this case is not only against the principle of trust protection, but also cannot be deemed to fall under Article 4 (1) 1 and 3 of the Liquefied Petroleum Gas Act, even though the defendant examined the grounds for the disposition of this case that was carried out by the defendant. Thus, the first disposition of this case is unlawful.

3. Whether the disposition No. 2 of this case is legitimate

As long as the disposition No. 1 of this case is unlawful as above, the disposition No. 2 of this case premised on it is unlawful.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-soo

More than a judge;