2. Hyundai Scom Company;

1. As to the assertion of misapprehension of legal principles on interpretation of Article 5 of the Addenda of the Water Supply and Waterworks Installation Act

A. Article 7-2(1) of the Water Supply and Waterworks Installation Act amended on May 25, 2010 provides that a factory under subparagraph 1 of Article 2 of the Industrial Cluster Development and Factory Establishment Act may not be established in an area prescribed by Presidential Decree, which is an upper region of a water-source protection area, or upstream or lower region of a water intake facility (facilities for wide-area waterworks and local waterworks). Accordingly, Article 14-2(1) of the Enforcement Decree of the Water Supply and Waterworks Installation Act amended on October 10, 2010 provides that where a water-source protection area is designated and publicly announced, a factory may not be established within a 10-distance flow-distance upstream from the border area of a water-source protection area to the upper region of a factory site at the time of the enforcement of the Enforcement Decree, notwithstanding the amended provisions of Article 14-2 of the Addenda, a factory may be extended within the scope of the area of the factory site at the time of the enforcement of the Enforcement Decree (title 1).

Meanwhile, Article 2 of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter referred to as the "Industrial Cluster Act") provides that "construction of a factory" means construction of a new building (including construction of a structure) or alteration of the use of an existing building to that of a factory, etc. (Article 21); "extension of a factory means extension of a factory area or factory site area of a factory registered pursuant to Article 16 (1)" (Article 22). In addition, the Industrial Cluster Act provides that "the Minister of Knowledge Economy shall determine and publicly notify the standards for matters such as type, size, scope, etc. of a factory permitted or restricted for each special-purpose area under Article 16 of the Industrial Cluster Development and Factory Establishment Act (referring to "the Act on Industrial Cluster Development and Factory Establishment" under Article 2 of the former Enforcement Decree of the Industrial Cluster Development Act) by the head of a Si/Gun/Gu or the head of a Gu who intends to obtain approval for alteration of a type of business or alteration of a type of business under Article 16 of the Act.

B. In light of the contents of the relevant provisions and the legislative intent of Article 5 of the Addenda of the Enforcement Decree of the Water Supply and Waterworks Installation Act, which could be caused by the amendment of the Enforcement Decree of the Water Supply and Waterworks Installation Act, for the purpose of allowing acts within a certain extent that does not have any particular influence on water pollution risks in order to prevent infringement of interests in factories which were previously established due to the amendment of the Enforcement Decree, and if it is deemed that the alteration of the purpose of use and the purpose of use entirely different from the purpose of a factory already established constitutes an extension of a factory, there is no need for separate provisions under Article 5 subparagraph 2 of the Addenda of the Enforcement Decree of the Water Supply and Waterworks Installation Act, the judgment of the court below that the construction of the instant asphalt production facilities by the supplementary intervenor (hereinafter referred to as the "participating") does not constitute an extension of a factory is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles on the interpretation of Article

(1) The relevant provisions are as follows.

① Article 6 of the Industrial Cluster Act and Article 12 of the Enforcement Decree thereof provides that the standards for classification of other types of business subject to the "change of type of business" under the provisions of Article 18-2 (4) of the Enforcement Decree of the same Act shall be as specified in attached Table 1. In attached Table 1, "S-mixed manufacturing business (Classification No. 23991)" is included as the type of business subject to the change of type of business.

② Article 2 of the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter referred to as the "Water Quality and Aquatic Ecosystem Conservation Act") provides that "water in wastewater refers to water mixed with liquid or solid water-quality pollutants, which can not be used as it is" (subparagraph 4), and "water pollutants" means substances prescribed by Ordinance of the Ministry of Environment, which cause water pollution (subparagraph 7). Accordingly, Article 3 of the Enforcement Rule of the Water Quality and Aquatic Ecosystem Conservation Act provides water pollutants as shown in attached Table 2.

(3) Article 41 of the Water Quality and Ecosystem Conservation Act provides that the Minister of Environment shall separately impose the discharge dues on the business operator who discharges water pollutants as basic discharge dues and the excess discharge dues, and delegates the matters necessary for the calculation methods and criteria thereof to the Presidential Decree. Accordingly, Article 44 of the Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act provides for the method of calculating the discharge quantity of pollutants by the daily size of the business place specified in attached Table 13, which serves as the basis for calculating basic discharge dues (Article 2 (b)). The attached Table 13 provides for the discharge size by type of business place, and the non-fixed column subparagraph 2 of the attached Table

The calculation shall be calculated: Provided, That the water that is recycled in the production process through a certain pipeline is excluded from water that is used in the production process before it is discharged to the final discharge outlet of water or preventive facilities used in the production process, but it includes water that flows into preventive facilities and treats processed water, such as dilution water, water for living, water for indirect cooling, clean water inside the place of business, water used in the raw material stuff, etc., and the formula is defined as the formula (amount of wastewater discharged = the quantity of water used for living + the quantity of indirect cooling + the quantity of boiler for boiler + the quantity of product content + the quantity of water deemed not to be discharged to any other discharge outlet during the manufacturing process) and the quantity of wastewater discharged at the time of permission for the installation of discharge facilities under subparagraph 3 is defined as the estimated quantity of water used in the business plan.

(2) In full view of the contents of the relevant provisions and the legislative intent of Article 5 of the Addenda to the Enforcement Decree of the Water Supply and Waterworks Installation Act, it is reasonable to view that Article 5 subparagraph 2 of the Addenda to the Enforcement Decree of the Water Supply and Waterworks Installation Act permits the alteration of the type of factory to a type of business within the category of business within the classification of factory sites as stipulated in the Public Notice of Standards for Factory Location, even in cases where the building area of a factory already established increases, unless there are special circumstances

(3) Nevertheless, the act of changing the business type of a factory under Article 5 subparagraph 2 of the Addenda of the Enforcement Decree of the Water Supply and Waterworks Installation Act is limited to the principle that it should be conducted within the same extent in comparison with the size and use of a factory already established at the time of the above Enforcement Decree. Based on this, the lower court determined that the act of changing the business type of a factory allowed under Article 5 subparagraph 2 of the Addenda of the above Enforcement Decree does not constitute an act of changing the business type of a factory solely on the ground that the construction of the above facility falls under a size and use different from the factory already established, on the ground that the building of the above facility does not increase the amount of wastewater by the Intervenor. The lower court erred by misapprehending the legal doctrine on the interpretation of the business type change under Article 5

2. As to whether the Defendant did not properly conduct an environmental review related to each of the dispositions of this case

A. In principle, the judicial review of discretionary acts is subject to the determination of whether there is a non-exercise or neglect of discretionary power, or a deviation or abuse thereof, taking into account the room for the determination of the public interest by the administrative agency’s discretion. The review is subject to the determination of the determination of facts, such as non-exercise of discretionary power, mistake of facts, and violation of the principle of proportionality and equality (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2012Du25590, Apr. 24, 2014).

B. After finding facts as stated in its holding, the lower court determined that each of the dispositions in this case was unlawful on the ground of the business plan, etc. submitted by the Intervenor without undergoing an objective investigation, etc., which was merely a formal review within three to four days, or within three to four days after receiving a request for environmental review.

C. However, the above determination by the lower court is difficult to accept for the following reasons.

(1) The reasoning of the lower judgment and the record reveal the following facts.

① On July 6, 2012, the head of the Defendant’s job economy division requested an environmental review to the head of the general civil petition office and the head of the Green Environment Department, along with the written application for occupancy contract and the business plan of the Intervenor Daesung C&C Co., Ltd. (hereinafter “Large C&C”), and the said business plan is written as 0.01 tons/day of living water and 0 industrial number.

On July 31, 2012, the head of the defendant's job economy division requested the head of the general civil petition office and the head of the Green Environment division to review the environmental impact of the intervenor Hyundai Sccon Co., Ltd. (hereinafter referred to as the "on-site Mccon"), along with the application for occupancy contract and the business plan. The above business plan states that the quantity of daily wastewater generated is 12.0 cubic meters/day or fully reuse, and therefore there is no wastewater discharged.

③ On July 9, 2012, the head of the Defendant’s general civil petition office submitted the review opinion that “it is necessary to report air emission facilities in accordance with Article 23 of the Clean Air Conservation Act for building facilities, screening facilities, mixing facilities, and melting and melting facilities whose fuel usage is at least 30 km per hour, or which are at least three meters per hour; on July 31, 2012, the Intervenor’s Hyundai Amcom should report on the installation of air emission facilities in accordance with Article 23 of the Clean Air Conservation Act.” On July 31, 2012, the head of the Defendant’s general civil petition office submitted the review opinion that “it is necessary to install wastewater discharge facilities in accordance with Article 33 of the Water Quality Conservation Act,” that “it is possible for the Intervenor to move into an agro-industrial complex in accordance with Article 36 of the Guidelines for Treatment of Construction Wastes in accordance with Article 36 of the Act.”

⑤ According to the report on the construction of a structure of large aggregate by the Intervenor and the holding of the council for processing complex civil petitions on the application for a building permit of Hyundai As a result of calculating the amount of wastewater discharged by the Intervenor at the end of October 8, 2012, the head of the Defendant’s general civil petition office presented his opinion that “the amount of wastewater discharged is 0.08m, and the amount of water used (wastewater discharged) is not a wastewater discharge facility, and the amount of wastewater discharged is 0.032m, and the remainder is 0.04m, and the total amount is 0.04m, and the amount of wastewater discharged by the Intervenor is not discharged.” As a result of calculating the amount of wastewater discharged by the Intervenor at the end of calculating the amount of wastewater discharged by

(2) Examining these facts in light of the legal principles as seen earlier, solely on the ground that the Defendant, based on the business plan submitted by the Intervenor, completed a short-term review opinion on the basis of the Defendant’s request for an environmental review, cannot be readily concluded that the instant environmental review opinion is formally formal or defective as a matter of course, and each disposition of this case cannot be deemed unlawful on the ground that there was an opinion on such formal review. However, if the Defendant’s failure of the review opinion, i.e., omission of matters to be included in the subject of consideration on the exercise of discretion regarding the occupancy permit, etc., is recognized, or specific circumstances to be considered as deviation or abuse of discretion, each disposition of this case may be deemed unlawful

Therefore, the lower court should have deliberated on whether the Defendant’s opinion on the environmental review of the instant case was prepared in consideration of all the circumstances by exercising his/her right of explanation, and then should have deliberated on whether the foregoing opinion on the environmental review was defective and the degree thereof, and, based on the result, considered whether the discretion was admitted to each disposition of the instant case.

D. Nevertheless, the lower court determined that each of the instant dispositions was immediately unlawful solely on the ground that a formal review was conducted. In so determining, it erred by misapprehending the legal doctrine on deviation and abuse of discretionary power, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on

3. As to the assertion of misapprehension of the legal principle as to the violation of public announcement procedure

A. Article 48-2(1) of the Enforcement Decree of the Industrial Cluster Act provides that, if a management agency intends to conclude a occupancy contract, it shall determine the industry subject to occupancy, the qualifications for occupancy, the priority order for occupancy, etc. and shall be publicly announced at least 15 days in the Facton system, and if necessary, the method of public announcement in daily newspapers, etc. may be concurrently conducted (hereinafter referred to as “public announcement on occupancy standards, etc.”). In light of the language, content, and purport of such provision, even if the land in a already sold agro-industrial complex is acquired, there is no difference in application of various special provisions, and even if it is necessary to secure transparency in the process of concluding a occupancy contract through information provision, it cannot be deemed as necessary. However, even in cases of acquiring the land in an agro-industrial complex, it is reasonable to deem that public announcement, such as the standards for occupancy, etc., should be made only in order to secure administrative transparency through information provision on the occupancy standards, and that public announcement should be made differently in cases where many enterprises wish to move in, such as new sale, etc.

B. The lower court determined that each of the dispositions of this case, which the Defendant did not comply with the procedure of public announcement, was unlawful, since it is necessary to publicly announce the occupancy standards, etc. even when acquiring the land in an agro-industrial complex

C. However, the lower court’s determination is difficult to accept.

Even in cases where the court below acquires land in an agro-industrial complex, it is reasonable in that the procedure of public announcement is required. However, in light of the aforementioned purport, even in cases where the land in an already sold agro-industrial complex is acquired, it cannot be deemed as an unlawful ground for each disposition of this case, barring any special circumstance, barring any special circumstance.

D. Nevertheless, the court below erred by misapprehending the legal principles as to defects in the announcement procedure and illegality of disposition, etc. on the ground of violation of Article 48-2 (1) of the Enforcement Decree of the Industrial Cluster Act, which affected the conclusion of the judgment. The ground of appeal on this part is with merit.

4. Conclusion

The lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal, 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.

Chief Justice Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in