[2] Whether administrative agencies have discretion to determine whether to grant permission for a liquefied petroleum gas filling business in a development restriction zone (affirmative), and the method of judicial review on speed action and discretionary action

1. A. The lower court acknowledged the following facts in full view of the adopted evidence.

(1) On June 16, 2014, based on the provisions of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”) and the Enforcement Decree thereof, the Defendant publicly announced plans for and standards for the placement of gas charging stations and resting places to be placed within development restriction zones (hereinafter “instant public notice”).

(2) Article 1 (Purpose) of the instant public notice provides, “This public notice shall be made to set the standards for installation (permission) of a liquefied petroleum gas charging station and resting place in order to enhance convenience for residents at the time of the designation of a development-restricted area as a development-restricted area in accordance with the provisions of Article 12 of the Development-restricted Area Act, Article 13 of the Enforcement Decree of the same Act, and Article 7 of the Enforcement Rule of the same Act.” Article 2 of the same Act provides, “The fixed number and examination route according to the plan for the placement of liquefied petroleum gas charging stations and resting place within the development-restricted area are as shown in Table 1 [Attachment Table 1], and the fixed number and examination route for the installation (Article 1) are as stated in [Attachment Table 1], (Article 4 (5) [Attachment 1], that the permission and facility standards shall conform to the standards of the relevant laws, such as liquefied petroleum gas safety and business, and that it shall be designated in order to improve the income of residents in the development-restricted area.”

(3) On July 2, 2014, the Plaintiff returned the instant application to the Defendant on July 2, 2014, on the following grounds: (a) Busan Shipping Daegu and six parcels (which constitutes the section No. 5 of the instant arrangement plan; hereinafter “instant application site”) (hereinafter “instant application”). After adding up the instant application to the Defendant on October 6, 2014, the Plaintiff filed a report on the construction of a liquefied petroleum gas filling station’s designation as a business site (hereinafter “instant application”). Accordingly, on July 25, 2014, the Defendant was adjacent to the Plaintiff on July 25, 2014 to the main entrance and exit of the instant market, which is a large-scale public-use facility used by many citizens and distribution workers, and thus, is likely to undermine public safety and interests at the time of a gas (explos. 1), and thereafter, the Plaintiff filed a return on the instant disposition to the Plaintiff on the ground that the instant application was rejected on the ground that each of the instant construction report was rejected.

(4) The instant market is 151,642 square meters of the site area, and 80,028 square meters of the total floor area of a building. All the entrances having four entrances. Of them, the entrance entrance south door is located across the five-lane road, and there is about 30 meters away from the instant application site and about 75 meters of the instant building. Meanwhile, the instant application form is located far away from the instant application site and the instant building. Meanwhile, the instant application form is installed as a liquefied petroleum gas charging facility with an underground burial storage facility of about 19.9t size. The instant construction meets all facility standards, such as the two-way distance prescribed by the former Safety Control and Business of Liquefied Petroleum Gas Act (wholly amended by Act No. 13089, Jan. 28, 2015; hereinafter “former Liquefied Petroleum Gas Act”).

B. On the premise of such factual basis, the lower court determined that the Defendant’s rejection of the Plaintiff’s application on the ground that “the instant application is adjacent to the instant market, and might undermine public safety and interests when a gas (explosion) accident occurred,” thereby infringing the Plaintiff’s interest by acting in trust the above statement of opinion, and thus violating the principle of trust inasmuch as the Defendant’s rejection of the application on the ground that “the instant application constitutes a violation of the principle of trust inasmuch as the Plaintiff’s interest would infringe upon the Plaintiff’s interest by acting in trust in the name of the above statement of opinion.”

Furthermore, the lower court determined that each of the dispositions of this case is unlawful on the grounds that it is insufficient to recognize the grounds for disposition of Article 4(1)1 of the former Liquefied Petroleum Gas Act on the following grounds: (a) the distance between the building of the market of this case and the site for the application of this case (75m) exceeds 48m of the separation-distance as stipulated in the Enforcement Rule of the same Act, (b) there is no evidence to support that there is a high possibility of traffic accident even if gas filling in the application of this case has occurred; (c) there is no evidence to support the fact that there may be considerable damage to the users of the market of this case due to flame caused by explosion, etc. despite the result of technical review by the Korea Gas Safety Corporation and the measures such as installation of fire walls by the Plaintiff, etc., despite the fact that there is no evidence to support the grounds for disposition of Article 4(1)1 of the former Liquefied Petroleum Gas Act.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. As to the violation of the principle of trust protection

(1) 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 subject of trust to an individual, second, the administrative agency's trust in the statement of opinion should not be attributable to the individual, third, the individual should have trusted that the statement of opinion is justifiable, and third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency's disposition contrary to the above statement of opinion should cause an infringement on the individual's trust in the name of opinion, and last, the administrative disposition pursuant to the above statement of opinion should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2009Du22980, Nov. 24, 201).

(2) However, Article 12(1)1(e) of the Act on Special Measures for Designation and Management of Development Restriction Zones provides for matters necessary for efficiently managing development restriction zones, such as designation of development restriction zones, restrictions on activities in development restriction zones, support for residents, purchase of land, and other development restriction zones, with the aim of preventing urban disorderly expansion and securing the healthy living environment for citizens by preserving the natural environment surrounding cities (Article 1). Article 12(1)1(e) of the same Act provides that, in principle, buildings cannot be constructed in development restriction zones, but “facilities for residential, living, convenience, and livelihood of residents in development restriction zones” can be constructed with the permission of an administrative agency. Article 13(8) of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 25650, Oct. 8, 2014); Article 13(1) [Attachment 1] of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones and the traffic volume of new roads can be inevitablyd only in accordance with the construction volume increase of roads.

(3) The aforementioned facts are revealed in light of the language and purport of the relevant statutes, namely, (i) the instant public notice was established pursuant to the development restriction zone laws and regulations; (ii) the development restriction zone law aims to prevent urban disorder and ensure the healthy living environment for citizens by preserving the natural environment surrounding the city; and (iii) according to the standards for establishing a plan for establishing a liquefied petroleum gas charging station, it merely provides that the preservation of development restriction zones, traffic volume, convenience in the use of facilities, etc. shall be considered; and (iv) the public notice itself does not provide for consideration of the risk of disaster caused by the installation of a liquefied petroleum gas filling station; and (v) the permission and facility standards for charging stations shall conform to the standards of the relevant laws and regulations, such as the Liquefied Petroleum Gas Act (Article 4(5)); and (v) the number of charging stations that may actually obtain permission is no longer than the number prescribed in the instant plan (Article 2(2)); and (iii) it is difficult to see that the Defendant’s construction of the instant public notice is included in the boundary of the instant road or the location of the instant public notice.

Therefore, among the grounds cited by the Defendant, the purport of “place adjacent to the instant market” is included in the disposition, and each of the instant dispositions cannot be deemed to violate the principle of trust protection.

B. As to whether it constitutes grounds for exemption from permission under the Liquefied Petroleum Gas Act

(1) Article 3(1) of the former Liquefied Petroleum Gas Act provides that a person who intends to operate a liquefied petroleum gas filling business (hereinafter “pacting business”) shall obtain permission from the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, or the head of a Si/Gun/Gu (referring to an autonomous Gu; hereinafter “the head of a Si/Gun/Gu”) at each place of business, and Article 4(1) of the former Enforcement Rule of the same Act provides that a person shall grant permission except for cases where permission or alteration of charging business is applied for “where it is determined that the commencement or alteration of business is likely to hinder the protection of people’s lives and property and the prevention of disasters,” and Article 4(2) of the same Act provides that detailed matters concerning the requirements for permission under subparagraphs 1 through 3 shall be prescribed by ordinances of the relevant local government. Meanwhile, Article 3(4) of the former Liquefied Petroleum Gas Act provides for facility standards and technical standards for filling, collective supply and sale of liquefied petroleum gas and manufacture of gas appliances, and Article 3(1) of the former Enforcement Rule of the same Act.

(2) Since the former Liquefied Petroleum Gas Act separates the standards for permission for filling business and the standards for facilities and technology, a filling business may be conducted in compliance with all the standards. Furthermore, whether the grounds for exclusion from permission under Article 4(1)1 of the former Liquefied Petroleum Gas Act include “cases where there is an obstacle to the protection of people’s lives and property damage and the prevention of disasters” should be reasonably considered in light of the purpose of the Liquefied Petroleum Gas Act (see, e.g., Supreme Court Decision 2012Du8205, Apr. 26, 2013).

In addition, according to the relevant laws and regulations such as the Development-Restricted Zone Act and the Liquefied Petroleum Gas Act, permission for liquefied petroleum gas-related business in development-restricted areas for automobiles is defined as indefinite concepts, and therefore, administrative agencies are granted discretion to determine whether to grant permission. In cases where administrative acts are classified into indecent acts and discretionary acts, judicial review as to both parties shall be based on the fact-finding and the interpretation and application of the relevant laws and regulations in the case of the former, and the court shall determine the legitimacy of the judgment made by the administrative agencies in light of the conclusion. However, in the latter case, considering the possibility of public interest determination based on the discretion of the administrative agencies, the court shall only examine whether the relevant acts are deviating from or abusing the discretionary power without drawing an independent conclusion, and the examination of deviation or abuse of discretionary power is subject to such determination, such as misconception of facts, violation of the principle of proportionality and equality (see, e.g., Supreme Court Decision 2005Du1466, Jun. 14, 2007).

(3) Examining the above facts in light of the provisions of the relevant laws and the legal principles as seen earlier, ① the large-scale public use facilities with large-scale population such as workers and micro enterprises, etc., where a fire or explosion accident occurred in light of the distance between the market of this case and the site of this case, workers and users of the market of this case may not be ruled out. ② Although the Plaintiff was judged appropriate as a result of a technical review of the contents of this case, it is limited to the meaning that the suitability of facility standards and technical standards under Article 3(4) of the former Liquefied Petroleum Gas Act is satisfied, and it is difficult to view that the Plaintiff could completely prevent damage caused by gas explosion even if the Plaintiff is expected to install additional fire walls, it is difficult to view that the application of this case constitutes grounds for exemption from permission under Article 4(1)1 of the former Liquefied Petroleum Gas Act, which rejected the Plaintiff’s application for permission. It is difficult to deem that there was an error of deviation or abuse of discretionary power, such as misconception of facts or violation of proportionality and equality principles.

C. Nevertheless, on different premise, the lower court determined that each of the instant dispositions was unlawful. In so determining, the lower court erred by misapprehending the principle of trust protection and the legal doctrine on the interpretation and application of the requirements for permission for liquefied petroleum gas-related business under the Development Restriction Zone Act, thereby adversely affecting

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)