[2] The meaning of the National Defense and Military Installations Projects Act and the former Forestry Act, which prescribes that prior consultation with the Minister of the Korea Forest Service shall be held before rendering a disposition such as approval for a project to use a preserved forest for other purposes, and whether the approval disposition without such consultation is void (negative)

[2] Under the National Defense and Military Installations Projects Act and the former Forestry Act (amended by Act No. 6841 of Dec. 30, 2002), the meaning of the provision that a consultation with the Minister of the Korea Forest Service should be sought prior to a disposition such as approval for a project to use a reserved forest for other purposes is not that of seeking consultation with the Minister of the Korea Forest Service. Thus, even if such consultation was not carried out, it is reasonable to deem that the approval disposition is merely a defect that may cause cancellation of the approval disposition, and it does not constitute a defect for which the approval disposition becomes null and void as a matter of course.

On the premise of these legal principles, if a project subject to the environmental impact assessment under the former Environmental Impact Assessment Act is conducted without going through the environmental impact assessment and without going through the consultation with the Minister of Environment, it is considered whether such unlawful disposition is void automatically.

The purpose of the former Environmental Impact Assessment Act is to maintain and create a pleasant environment by assessing and reviewing the impact of a project on the environment in advance and by ensuring that the project is environmentally sound and sustainable development (Article 1); when the State and local governments intend to establish and implement various policies and plans, they shall consider environmental impacts and take measures therefor; when a person intends to implement a project affecting the environment, he/she shall recognize the importance of environmental preservation in depth and minimize environmental impacts due to the implementation of the project (Article 3), and when preparing an environmental impact assessment report in order to achieve such legislative purpose, he/she shall hold an explanatory meeting or public hearing to collect the opinions of residents in the area subject to environmental impact assessment and include them in the contents of the assessment report (Article 9); when the project plan is likely to cause environmental impact, the Minister of Environment may request the Minister of Environment to adjust or supplement the project plan (Article 17) and the head of the approving agency shall not request the project operator to take necessary measures, such as the suspension of construction work (Article 7).

The purport of such provisions of the former Environmental Impact Assessment Act is not to protect the public interest related to the project by allowing the project to be implemented in such a way that does not harm the environment, but to protect the individual benefits that can live in a pleasant environment without being subject to the environmental infringement limit, compared to previous convictions, by the residents in the area subject to the environmental impact assessment that is expected to cause direct and serious environmental damage (see, e.g., Supreme Court Decisions 97Nu3286, Apr. 24, 1998; 99Du2970, Jul. 27, 2001).

However, if a disposition, such as approval, is taken without going through an environmental impact assessment, it shall collect the opinions of the residents in the area subject to the environmental impact assessment in advance and reflect the contents of consultation with the Minister of Environment in the project plan based on the results thereof. If so, the legislative intent of the environmental impact assessment system cannot be achieved in order to prevent the destruction of the environment and to maintain and create a pleasant environment, as well as the fundamental infringement of the residents' direct and individual interests in the area subject to the environmental impact assessment, the defect of such administrative disposition shall not be deemed to have seriously violated the important parts of the laws and regulations and objectively obvious.

In this regard, the court below affirmed the judgment of the court of first instance that held that the disposition of this case by the defendant which approved the project implementation plan without consultation with the Minister of Environment is null and void, although the business owner did not conduct an environmental impact assessment on the water source problem, etc. directly connected to the survival of residents with respect to the national defense and military installations project of this case, which is a project subject to environmental impact assessment, is just, and contrary to the allegations in the grounds of appeal

However, the judgment of the court of first instance, as cited by the court below, states that the procedural defect which the defendant did not hold prior consultation with the Minister of the Korea Forest Service in relation to the diversion of a reserved forest constitutes a reason for invalidation of a year, because it is significant and clear, but it does not mean that prior consultation with the Minister of the Korea Forest Service is required to seek advice in accordance with his opinion before rendering a disposition such as approval for a project to use a reserved forest for other purposes under the National Defense and Military Installations Projects Act and the former Forestry Act (amended by Act No. 6187 of Dec. 31, 1999). Thus, even if such consultation was not conducted, it is merely a reason for revoking the pertinent approval disposition and it does not constitute a defect that is a reason for invalidation of a year (see, e.g., Supreme Court Decision 9Du653, Oct. 13, 200). Therefore, the above explanation is not appropriate, but it does not affect the conclusion of the judgment of the court of first instance and the court below.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)