Seoul ○○

○○○○

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

Litigation performer ○○○

Attorney ○-○, et al.

2. The costs of lawsuit shall be borne by the Plaintiff.

A. On August 30, 1984, the Plaintiff (the company’s name at the time was ○○○○○○ Company) as an affiliated company of ○○ Group, for the purpose of saving foreign currency in place of drinking spring water used for drinking drinking water in Korea as an affiliated company of ○○○○○○, and had obtained permission to manufacture drinking water for preservation of drinking water from the Minister of Health and Welfare on the condition that “limited to sale of drinking spring water to foreign people in Korea or exported or to foreign people in Korea” from the Minister of Health and Welfare on August 30, 1984, Jeju-do 1-dong ○○○- ○○○- ○○○○○○○ located in ○○○○○○○○○○○○○○○○○○○○○○, Inc., in April 1986, the Plaintiff operated a drinking spring water manufacturing business by relocating and expanding production facilities to ○○○○○, a place of production of drinking spring water from the Jeju-do to the present day.

B. As the Special Act on Jeju-do Development was enacted on December 31, 1991 and promulgated on November 25, 1995, the Plaintiff obtained permission to use small definition groundwater under the above Act on the condition that “the entire production portion of products is limited to the export or sale to foreigners in Korea” and thereafter obtained permission to reuse groundwater every year in accordance with the above Act.

C. However, on February 3, 1996, the plaintiff filed an administrative appeal on the ground that the above part of the above part attached by the defendant while granting permission for the reuse of groundwater was illegal and unjust. The Minister of Construction and Transportation ordered the cancellation of the above part of the court while rendering the quoted ruling on September 18, 1996.

D. Accordingly, the Plaintiff’s act of manufacturing and selling drinking spring water to Jeju-do groundwater was permitted. The representative director at the time of the Plaintiff’s filing on October 8, 1996 opened a dog conference from Jeju-do○○○○, which held on October 8, 1996, to clarify that the Plaintiff did not intend to sell drinking spring water produced from Jeju-do groundwater to the domestic market, and that he did not intend to sell it to Jeju-do’s domestic market. The Plaintiff attended Jeju-do Council on December 27, 1996 and experienced

E. The Plaintiff applied for the issuance of “affiliated company (referring to the group company and the Labor Group to which the Plaintiff belongs)” for the purpose of release in accordance with the aforementioned externally expressed conditions from January 15, 1997 to January 2004, each year, with the permission of release of preservation resources [referring to Article 23(5) of the Jeju-do Special Act on Jeju-do Development (repealed by the Special Act on Jeju-do, which was enforced from April 1, 2002, and Article 32(5) of the Special Act on Jeju-do]. The Defendant has granted the permission of removal of preservation resources as requested by the Plaintiff.

F. However, on January 3, 2005, the Plaintiff stated the purpose of release as “sale” unlike before the transfer, and expressed its intention to completely sell the drinking spring water produced in ○○ farm to the domestic market. On this basis, the Defendant, as before, designated the purpose of release as “affiliated marketing” and imposed the permission for release of preserved resources.

G. On January 1, 2006, the Plaintiff applied for permission to release preserved resources (groundwater) and entered the purpose of release as “sale.” As to this, on January 12, 2006, the Defendant issued the instant sub-Section which was named as “sale of affiliated companies” as the same as the previous sub-Section for the purpose of release. In granting the instant sub-Section, the Defendant issued the permission to release preserved resources.

[Ground of recognition] Facts without dispute, Gap 1 through 7 evidence, Gap 31 evidence, Eul 1 to 4 evidence, Eul 6 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts that although the disposition of permission for the release of preserved resources is a binding act or discretionary act, it is not a case where the discretionary power is reduced to zero, the defendant attached the additional clauses of this case. ② Even if it is possible to attach the additional clauses of this case, the additional clauses of this case violates the purpose of relevant Acts and subordinate statutes and the principle of prohibition of unfair decision-making, and it is contrary to the principle of equality, and without reasonable grounds, violates the freedom of the plaintiff's occupational activities and violates the principle of proportionality, and thus, it is in fact impossible to implement the contents of the disposition.

3. Determination,

(a) Related Acts and subordinate statutes;

As shown in the attached Form.

B. Determination as to the permission of assistant officers

(1) The nature of the father of the instant case

The subsidiary of this case is a disposition that permits the plaintiff to take out the ground water of Jeju-do to use the drinking spring water made of Jeju-do ground water only for the purpose of selling the group company and to order the plaintiff not to sell it. Thus, the subsidiary of this case's order of omission in addition to the main administrative act (permission on the release of preservation resources) and the plaintiff's disposition of the permission on the release of preservation resources does not go against the validity of the disposition itself. Thus, the subsidiary of this case's disposition of the permission on the release of preservation resources itself does not go against the validity of the disposition itself.

(2) The nature of the measure of permission for the release of preserved resources and the permission of its subsidiary officers

(A) Article 120 of the Constitution of the Republic of Korea provides that "A license for gathering, developing, or using important underground resources may be granted for a certain period of time as prescribed by the Act." Article 26 (1) of the Jeju Free International City Act provides that "Do residents can share benefits from the natural environment together with other residents, and at the same time, Jeju-do shall preserve and manage the natural environment so that future generations can have equal opportunities for using the natural environment." Article 32 (5) of the same Act and Article 34 of the Enforcement Ordinance of the same Act provide that the release of preserved resources may be prohibited in exceptional cases with the permission of the Do Governor, unless there are special circumstances in order to protect the preservation of the preservation resources such as groundwater. However, the criteria for the permission are indefinite concepts, and even if it conforms to the criteria for the permission for removal of preserved resources, the permission for release of preserved resources constitutes a "patent discretion."

(B) However, in the case of discretionary action, unless otherwise expressly prohibited provisions of relevant Acts and subordinate statutes, an additional charge, such as conditions, deadline, burden, etc., may be imposed in order to achieve the administrative item (see, e.g., Supreme Court Decision 2003Du12837, Mar. 25, 2004). Therefore, the instant additional charge is allowed to impose the same burden on the permission of release of preservation activities.

C. Determination as to the illegality of the contents of the indictment

① 이 사건 부관은 개발된 제주도지하수를 먹는샘물로 사용함에 있어 그룹사 판 매용으로만 사용하고 시중에 판매하지 말 것을 그 내용으로 하는 것으로, 반출목적을 위와 같이 한정시킴으로써 원고가 채수할 수 있는 제주지하수의 양을 제한할 수 있어 '제주도지하수 보호'라는 보존자원 반출허가제도의 목적에 부합하고, ② 이 사건 부관 을 통해 국내에서 유통되는 제주도산 지하수의 양을 한정시킴으로써 제주도산 지하수 의 희소가치를 높인다는 점에서 ‘제주도지하수 보호'라는 보존자원 반출허가제도의 목 적과 결부되어 있다고 볼 수 있는 점, ③ 최후의 수자원이라고 불리우는 지하수는 공 공의 자원이고 적절한 관리 · 보전 없이는 고갈되는 유한한 자원이며, 특히 제주도는 투수성이 매우 좋은 다공질 화산암층으로 이루어졌으며 물 부족시에 외부에서 유입할 수 있는 수원(水源) 이 전혀 없는 섬이라는 환경적 요인에 의해 제주에서의 지하수는 육 지에서의 지하수보다 보호의 필요성이 매우 절실하다고 할 것이므로, 제주국제자유도 시특별법 제33조 제3항은 사인이 제주지하수를 이용하여 먹는샘물을 판매하는 것을 전 면금지함으로써 제주도지하수의 공익적 이용 원칙, 제주도지하수를 이용한 사적 이익 추구 금지의 원칙을 천명하고 있는바, 이러한 원칙은 제주도지하수의 개발단계뿐만 아 니라 제주도지하수가 도외로 반출되는 경우에도 관철되어야 한다는 점 , ④ 먹는샘물을 제조 ·판매하는 기업은 지하수 보전에 있어서 특별한 위험을 야기할 수 있고, 그 특별 한 위험을 미연에 방지하기 위하여 지하수의 도외반출 단계에 있어서도 엄격한 규제를 가할 필요성이 절실한 점, ⑤ i ) 현재 제주도지하수를 이용하여 먹는샘물인 '삼다수' 를 시판하고 있는 제주도○○○○공사는 국회에서의 입법인 제주국제자유도시특별법 제33 조 제3항 단서에 따라 제주산 생수 시판권을 독점적으로 보장받았다는 점, ii) 제주도 OOOO공사는 제주도 및 제주도내 지방자치단체가 100% 출자하여 만든 공기업으로 서 생수 시판으로 인한 이익이 제주도에 그대로 환원되어 그 이익이 공익목적으로 활 용되므로 제주도지하수의 공익적 이용 원칙에 합치되는 점( 을 9, 28호증의 각 기재) 등 에 비추어 보면, 제주도○○○○공사와 사기업인 원고를 동등하게 대우할 수 없는 점, ⑥ 원고의 경우 그 동안 제주지하수를 이용하여 먹는샘물을 계열사에 판매한 결과, 판 매량과 판매액이 꾸준히 증가하여 2000년도에 62여억 원, 2003년도에 64여억 원 , 2004년도에 70여억 억, 2005년도에 74억여 원의 매출실적으로 올렸고 그로 인하여 매 출액 기준으로 국내 66여 개 먹는샘물 제조업체 중 11위 내지 12위에 해당하는 업체 인 점( 을 7호증)(따라서 이 사건 부관으로 인하여 원고의 직업활동의 자유가 본질적으 로 침해되었다고 보기 어렵고, 이 사건 부관으로 인하여 원고가 침해당한 직업활동의 자유의 정도가 이 사건 부관으로 인하여 달성하려는 공익(지하수 보호와 지하수 공익 적 이용의 원칙의 실현)의 중요성과 비교하여 볼 때 현저히 침해된 것으로 보기 어렵 다), ⑦ 앞서 본 바와 같이 원고는 제주도산 생수를 시판할 뜻이 없음을 대외적으로 표 명하였고 그에 따라 원고 스스로 반출목적을 '계열사 공급'으로 정하여 신청하였고, 이 를 피고가 그대로 받아들이는 과정에서 이 사건 부관과 같은 내용의 부관이 계속 부과 된 것으로 피고가 적극적으로 위와 같은 부관을 부여하여 온 것은 아니며, 원고가 반 출목적을 판매’로 기재한 2005. 1. 3.경 무렵에는 이미 사기업의 제주도산 생수판매를 전면 금지하는 제주국제자유도시특별법 제33조 제3항이 발효중이었으므로( 위 조항은 2002. 4. 1.부터 시행되었고, 위와 같은 내용의 구 제주도개발특별법 제26조 제2항은 2000. 1. 28. 시행되었다), 피고로서는 원론적으로는 원고에 대하여도 ○○목장생산 생 수 판매사업의 금지를 명해야 하지만 소급입법에 의한 재산권 침해의 문제가 발생할 여지가 있기 때문에, 원고가 가지고 있던 기득권 내지 신뢰를 보호하고자 종전에 행하 던 원고의 생수판매 사업을 보장하는 의미에서 이 사건 부관을 붙인 것으로 보이는바, 그 수단의 적합성이 인정되는 점 , ⑧ 위와 같은 현행법의 규정에 비추어 볼 때, 원고가 가지고 있던 기득권 내지 신뢰의 범위를 유월하여 '○○목장에서 생산한 먹는샘물의 전면시판권'을 주장하는 것은 기득권 내지 신뢰보호의 한계를 벗어난 것으로 법치행정 의 원리상 받아들일 수 없는 점 , ⑨ 이 사건 부관이 원고에 대하여 지하수의 도외반출 을 전면 금지하는 것이 아니며 원고가 그동안 신청하여 실제로 수행해온 영업 행태에 맞추어 도외반출을 허가하는 것으로 주된 행정행위인 보존자원반출 허가처분의 본질적 효력을 저해하는 것으로 볼 수 없는 점 등이 인정된다.

In light of all the circumstances above, this case’s assistant management violates the purpose of the relevant laws and regulations, thus violating the principle of prohibition of unfair decision-making, violating the principle of equality, or infringing upon the freedom of the Plaintiff’s vocational activities, thereby violating the principle of proportionality, or infringing on the validity of the principal administrative act in essence or infringing on the non-performanceable assistant.

4. Conclusion

Therefore, the plaintiff's claim of this case, which is premised on the illegality of the father of this case, is dismissed as it is without merit, and it is so decided as per Disposition.

○ ○

Park ○

[Constitution]

Article 120

(1) Minerals, and other important underground resources, fishery resources, hydro-fishery resources, and natural resources usable for economic purposes may be licensed to collect, develop, or use them for a specific period, as prescribed by Act.

(2) The national land and resources shall be protected by the State, and the State shall develop plans necessary for the balanced development and utilization thereof.

[Special Law of Jeju Free International City]

Article 26 (Basic Directions for Conservation and Management of Natural Environment)

(1) In formulating and implementing development policies and plans, the Jeju-do and the competent Si/Gun/Gu and the Development Center shall ensure that environmentally sound and sustainable development is achieved, and benefits from the natural environment shall be shared by Do residents and shall be preserved and managed in such a way as to ensure that the nature can be utilized with an opportunity equivalent to the future tax prices.

Article 32 (Designation, etc. of Preserved Resources)

(1) If the Do Governor deems it necessary for the protection of resources of Jeju-do, he/she may designate such resources as prescribed by Provincial Ordinance among rare Dongs and plants living in Jeju-do, minerals living in Jeju-do, etc. as resources to be preserved (hereinafter referred to as "resources to be preserved").

(2) The Governor shall publicly announce the designation of conservation resources under the provisions of paragraph (1) without delay. (3) The Governor may prohibit the capture, felling, collecting, or damaging of conservation resources, as prescribed by Provincial Ordinance, if deemed necessary for the protection of conservation resources.

(4) The Governor may bear or subsidize expenses incurred in the management or protection of preserved resources, if deemed necessary for the protection of preserved resources.

(5) A person who intends to sell and purchase preservation resources in Jeju-do or take them out of Jeju-do (in the case of a company with mountain origin, referring to the area outside the reserve), shall obtain the approval of the Governor, as prescribed by Provincial Ordinance

Article 33 (Special Cases concerning Permission, etc. for Development and Utilization of Groundwater)

(1) Notwithstanding Articles 7, 7-2, 7-3, and 8 of the Groundwater Act and Article 9 and Article 9-2 of the Drinking Water Management Act, any person who intends to develop and utilize groundwater in Jeju-do shall obtain permission from the Governor: Provided, That this shall not apply to the case of Article 8 (1) 3 of the Groundwater Act.

(2) Where a person who has obtained permission under paragraph (1) intends to extend the period of the development and utilization of groundwater or to alter the permitted matters, he/she shall obtain the permission from the Governor.

(3) The Do Governor shall not grant permission under the provisions of paragraph (1) in cases falling under any of the following subparagraphs for the proper preservation and management of groundwater: Provided, That the same shall not apply to cases where a local public enterprise established by Jeju-do under the Local Public Enterprises Act intends to manufacture and sell products under subparagraph 1 to the extent that it does not impede the preservation of groundwater and the public interest:

2. Where he/she intends to manufacture and sell soft drinks, alcoholic beverages, etc. using at least 98/100 of groundwater.

(4) A person who has obtained permission for the development and utilization of groundwater (including an extension of the period of permission and permission for changes) under the provisions of paragraphs (1) and (2) shall prepare and submit a groundwater impact investigation report and undergo an examination, as prescribed by Provincial Ordinance.

(7) The Governor may take step-by-step measures related to restrictions on the volume of water intake and temporary suspension of use, as prescribed by Provincial Ordinance, if necessary to prevent the exhaustion of groundwater due to droughts, excessive intake of groundwater, etc.

(8) The Governor may designate any of the following areas as a special control district for groundwater resources, as prescribed by Provincial Ordinance. In such cases, the details thereof shall be publicly notified, as prescribed by Provincial Ordinance:

1. An area where the groundwater level is remarkably lowered or is highly likely to be lowered;

2. An area where seawater or salt water is highly feared to intrude, or where the concentration of salt ion in groundwater exceeds the water quality standards for drinking water;

3. An area where it is necessary to restrict the development and utilization of groundwater for future demand for water;

4. Other areas prescribed by Provincial Ordinance for the preservation of the volume and quality of groundwater.

【Enforcement Ordinance of the Jeju Free International City】

25(Subject to Designation of Preservation Resources) Resources to be preserved under the provisions of Article 32(1) of the Act (hereinafter referred to as "Preservation Resources").

The subjects to be designated as the Cultural Heritage Protection Act and the Jeju-do Ordinance on the Protection of Cultural Properties are as shown in the attached Table 6.

designated cultural properties, endangered and protected wild fauna and flora designated under the Natural Environment Conservation Act, and Hunting

Wild birds designated by Acts, natural protection forests and protected trees designated by the Forestry Act shall be excluded from the objects of designation.

(c)

Article 27 (Designation and Public Notice, etc. of Preservation Resources) (1) In the case of the designation or cancellation of conservation resources under Article 26, the place shall be

public notice of any official bulletin or information and communications network, etc. without delay, and if there is any owner or possessor of the preserved resources, public notice

the designation or cancellation of the existing resources shall be notified.

(2) The matters announced publicly under paragraph (1) shall be as follows:

1. Type, designation number, name, quantity, and location of preserved resources;

2. Name and address of the owner or occupant of preserved resources;

3. Prohibited acts for preservation resources; and

4. The method of managing preserved resources.

5. Grounds for designation or cancellation;

Article 29 (Permission for Preservation Resources Sales Business) (1) In accordance with Article 32 (5) of the Act, for profit-making purposes in Jeju-do.

A person who intends to sell or purchase existing resources shall obtain permission from the Do Governor for the preservation resources trading business. Modification of permitted matters.

This provision shall also apply to cases in which it is intended.

(2) Any person who intends to engage in the preservation resources trading business under paragraph (1) shall file a license for the preservation resources trading business in attached Form 3.

A written request shall be submitted to the Do Governor.

(3) When the Governor receives an application under paragraph (2), he/she shall handle it within ten days from the date of receipt.

shall issue a license for the preservation resources trading business (hereinafter referred to as "license") in attached Form 4, where such license is granted.

Highly permitted matters shall be recorded and managed in the ledger of permission in attached Form 5.

(4) When the certificate of permission is damaged or lost, the preservation resources dealer may request the Do governor to reissue the certificate.

(c)

Article 31 (Criteria for Permission for Trade of Preservation Resources) (1) The criteria for permission for trade of Preservation Resources under Article 29 shall be as follows:

1. The same shall apply to 1.

1. Where there is no hindrance to the preservation and management of preserved resources and the interests of Do residents are consistent with the interests of Do residents;

2. Where it is necessary for public institutions, such as the State and local governments, to implement public or official projects;

3. Where the Governor deems it necessary.

(2) Where the Governor permits a preservation resources trading business under paragraph (1), he/she shall efficiently preserve and carry out preservation resources.

any condition necessary to raise an objection may be attached thereto.

(3) If a person who has obtained permission for the preservation resources trade business falls under any of the following subparagraphs, the Do governor shall sell and purchase preserved resources:

license may be revoked.

1. Where any preserved resources illegally collected are traded;

2. Where he ships out of Jeju-do (referring to an area other than a reserve in cases of a mountain village; hereinafter the same shall apply) without obtaining permission for shipment;

3. If it fails to comply with any condition of permission or directions given by the permitting authority.

Article 33 (Permission for Shipping Preservation Resources out of Jeju-do Area) (1) The conservation resources under Article 32 (5) of the Act shall be released out of Jeju-do area.

A person who intends to file an application for permission in attached Form 9 with the Do Governor via the head of the competent Si/Gun and reflect thereon.

shall have the permission of withdrawal.

(2) When the head of a Si/Gun receives an application for permission pursuant to paragraph (1), he/she shall attach a written opinion thereto.

The Do Governor shall submit it within five days.

(3) The Governor shall comply with any permit or condition granted under paragraph (1) or take out of the scope of such permit or condition.

If it is deemed that the value of the preservation resources may be damaged by such reason, the permission may be revoked. The permission period for carrying the preservation resources out of Jeju-do areas as provided in Article 32 (5) of the Act shall be granted.

Warrantive measures shall be as follows:

1. Where they are taken out for the purpose of exchanges of local culture, such as exhibition of preserved resources;

2. Where the Do Governor deems it necessary to take them out for experiment or research purposes.

3. Other cases consistent with the interest of the Do residents and deemed by the Governor.

Article 35 (Procedures for Shipping Preservation Resources out of Jeju-do Area) (1) A person who desires to ship preservation resources out of Jeju-do area shall ship the resources out of Jeju-do.

The goods shall be taken out after being issued: Provided, That the goods out of the Jeju-do area of groundwater for the manufacture and sale of drinking spring water shall be taken out.

this provision shall not apply in the case.

(2) Any person who intends to obtain a certificate of shipment under paragraph (1) shall file an application for issuance of a certificate of shipment in attached Form 10.

shall be submitted to the Director.

(3) Upon receipt of an application under paragraph (2), the Do Governor shall record it in the ledger of issuance of shipment certificates in attached Form 11.

After then, a certificate of release in attached Form 12 shall be issued.

(4) Detailed matters concerning the sale and purchase of preserved resources shall be prescribed by rule.

[Special Act on Jeju-do Development] Article 26 (Special Act on Jeju Free International City repealed from April 1, 2002) (1) (Special Act on the Permission, etc. for Development and Utilization of Groundwater after the Special Act was amended by Act No. 6249, Jan. 28, 2000) (1) Any person who intends to develop and utilize groundwater in the Do shall, notwithstanding the provisions of Articles 7 and 8 of the Groundwater Act, be governed by this Act.

(2) The person who has obtained the permission pursuant to the provisions of paragraph (1) shall extend the period of the development and utilization of groundwater or alter the permitted matters.

If it is intended to obtain permission from the Governor, the permission shall be obtained as prescribed by Provincial Ordinance.

(3) The Governor shall determine the provisions of paragraphs (1) and (2) above in cases falling under any of the following subparagraphs for the proper preservation and management of groundwater:

No permission shall be granted pursuant to the provisions of the Local Public Enterprises Act: Provided, That a local public enterprise established by the Do under the Local Public Enterprises Act shall be

Where it is intended to manufacture or sell the products referred to in subparagraph 1 to the extent that it does not impede preservation and management, this shall not apply.

H.C.

1. Where it is intended to manufacture and sell drinking spring water under subparagraph 3 of Article 3 of the Management of Drinking Water Act;

2. Where he/she intends to manufacture and sell soft drinks, alcoholic liquors, etc. using at least 98/100 of groundwater.

[Management of Drinking Water]

Article 9-3 (Restriction, etc. on Development of Spring Water)

(1) Where the Mayor/Do Governor deems as a result of the examination of environmental impacts under Article 15 that it may affect the development of other public groundwater resources or the quality, etc. of surface water, he/she may not conduct the permission for the development of spring water under Article 9.

(2) In conducting permission for the development of spring water under Article 9, a Mayor/Do Governor may impose necessary conditions, such as restricting the volume of daily water intake according to the results of examination of a survey document under Article 15.