August 13, 2019

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

The defendant's provisional disposition of denial of development activities conducted on November 6, 2018 and provisional disposition of denial of construction made on November 8, 2018 shall be revoked respectively.

A. The Plaintiff is operating money death in the Hongcheon-gun (No. 2 omitted) Hongcheon-gun (No. 2 omitted).

B. On July 6, 2018, the Plaintiff filed a request with the Defendant to conduct an advance ruling as to whether it is possible to permit development activities in order to move the existing money to the Hancheon-gun ( Address omitted) and three parcels (hereinafter “the instant application site”), and the Defendant responded to the review of “conditionable” along with a written advance ruling containing the following details.

In accordance with Article 8(1) of the Act on the Management and Use of Livestock Excreta and Article 3(1) of the Ordinance on the Management and Use of Livestock Excreta, the relevant area of 00 square meters or more shall be located within the area where the raising of livestock is restricted if the area of raising facilities is not less than 1,000 square meters, which is the area of raising facilities: Provided, That in cases of the amount of money in accordance with Article 8(1) of the same Act and Article 3(1) of the Ordinance on the Management and Use of Livestock Excreta, 30 percent of the straight line in the forestry map shall be reduced from a limited distance, taking into account the impact of living malodor and water pollution when a boundary is formed on a mountainous district under Article 3(1) [Attachment 1] of the same Ordinance and Article 3(2) of the same Ordinance, taking into account the impact of living malodor and water pollution in the forestry map.

C. On August 30, 2018, the Plaintiff filed an application with the Defendant for permission to engage in development activities for the purpose of creating a site for new construction of, and entry into, entry into, pigs, which can raise 6,000 heads of pigs on a site of a total of 23,503 square meters on the ground of the instant application site. On October 2, 2018, the Plaintiff filed an application for permission to construct the said money.

C. On November 6, 2018, the Defendant rejected the Plaintiff’s application for permission to engage in development activities on the following grounds, and rejected the Plaintiff’s application for permission to engage in construction on November 8, 2018 (hereinafter “each of the instant dispositions”).

As a result of the review of the restriction on the location of the ground for disposition on which permission for development activities is not permitted in the main text, you shall notify the non-permission of the construction permit because the location of the livestock shed facilities is not possible as an area designated and publicly announced as an area subject to restriction on livestock raising pursuant to Article 8(1) of the Act on the Management and Use of Livestock Excreta. As a result of the review, Article 8(1)b of the Act on the Management and Use of Livestock Excreta.

D. On the northwest of the instant application site, the medical care center (hereinafter “instant medical care center”) and the center for senior citizens (hereinafter “the center for senior citizens of this case”) are located in North west. The straight line between the boundary of the instant application site and the boundary of the instant medical care center and the center for senior citizens exceeds 700 meters, but does not extend to one km.

【Fact-finding without a dispute over the basis for recognition】 The evidence Nos. 2, 4 through 8 (including each number in the case of provisional number; hereinafter the same shall apply), Eul's statement No. 17, the purport of the whole pleadings

2. The plaintiff's assertion

A. Non-existence of grounds for disposition

1) The Act on the Management and Use of Livestock Excreta was amended on July 10, 2017 (amended by Ordinance No. 2602, Apr. 17, 2019). As such, the scope of the area subject to restriction on livestock raising was expanded by the Ordinance prior to amendment in 2019. Since then, the Defendant did not publicly notify the topographic map regarding the area subject to restriction on livestock raising as prescribed by the Framework Act on the Regulation of Land Use. Accordingly, the designation of the area subject to restriction on livestock raising under the instant Ordinance was not effective in 2017, and the instant application does not fall under the area subject to restriction on livestock raising as of the date prior to the amendment of the instant Ordinance.

2) Since the instant application is surrounded by mountainous districts, the distance of restriction on livestock raising should be reduced by 30% pursuant to the instant ordinances. Ultimately, the instant application is not included in the livestock raising restriction zone.

(b) Deserting or abusing discretionary power;

The Plaintiff purchased land at KRW 1.1 billion after hearing the horses of the public officials belonging to the Defendant, who are able to newly construct money in the instant application form, and paid KRW 20 million for design deposit, KRW 20 million for small-scale environmental impact assessment costs. Due to each disposition of the instant case, fundamental rights under the Constitution, such as the Plaintiff’s property rights and freedom of economic activity, were seriously infringed. Since the instant application form is considerably far away from the downtown, there is no need for significant public interest to justify the infringement of the Plaintiff’s fundamental rights or for protecting the interests of a third party. There is no concern that environmental problems may arise due to the construction of the Plaintiff’s money death. Nevertheless, each disposition of the instant case, which rejected the Plaintiff’s application form, is an unlawful act that deviates from or abused

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. As to the non-existence of grounds for disposition

1) As to the assertion that the topographic map was not publicly announced as to the designation of livestock raising-restricted zones

A) According to the overall purport of the statements and arguments on the evidence Nos. 2, 19, 20, 21, and 22 of this case, the Defendant: (a) prepared a topographic map on the area including the instant application site in which livestock raising is restricted; and (b) published a notice on the change of the topographic map in the area where the raising of livestock is restricted on January 24, 2018 as prescribed by the Notice No. 2018-43 of the Hongcheon-gun, Hongcheon-gun; (c) posted such topographic map on February 13, 2018; and (d) recorded the topographic map in the Hongcheon-gun Environmental Sanitation Division and kept it in the real estate comprehensive public system. It is insufficient to reverse recognition of such fact solely on the basis of the evidence Nos. 12 and 13.

B) Therefore, the topographic map that includes the instant application area as an area where livestock raising is restricted has become effective after being publicly announced pursuant to Article 8 of the Framework Act on the Regulation of Land Use, etc.

2) As to the assertion that the distance of restriction on raising livestock should be mitigated

A) According to the instant public notice, ① the installation of a facility for raising pigs and discharging livestock excreta with a size of at least 1,000 square meters in a straight line within 1,000 square meters from the boundary of a facility for older persons and children within the nearest point of view of the site boundary of a facility for discharging livestock excreta is prohibited (Article 3(1) [Attachment 1] 3 subparag. 3(d) of the same Table.

B) In full view of the legislative purpose of the Act on the Management and Use of Livestock Excreta (hereinafter “the Livestock Excreta Act”) and the instant Ordinance, the legislative purpose of the livestock raising restriction zone system to preserve the living environment of local residents, and the spread of malodor and sewage generated from livestock pens to its surroundings depending on wind and topography, it is reasonable to deem that the “where the boundary is formed into a mountainous district” as the requirement for reducing the distance of livestock raising restriction refers to cases where livestock excreta discharge facilities are surrounded by a mountainous district within a geographical sense.

In order to constitute “when a boundary is formed as a mountainous district,” the Plaintiff’s assertion that a mountainous district exists between facilities for older persons and facilities for discharging livestock excreta, or that the term “land category is forest land” and “land where standing timber and bamboo are collectively raised,” as prescribed by Article 2 subparag. 1 of the Management of Mountainous Districts Act.

C) According to the aforementioned evidence, Gap evidence Nos. 13 and Eul evidence Nos. 16 and the overall purport of the video and pleadings, even though the area between the instant application site and the instant medical care center and the senior citizen center is located in a mountain, the north direction of the instant application site constitutes a slope to complete down, and it can be recognized that this area is currently being used as farmland.

In the event of new construction of money in the instant application site, malodor and sewage generated from the money shed may be anticipated to spread to nearby facilities for the elderly and children, etc. using at least the direction of farmland located in mountainous districts, the boundary of which is not formed. The instant application site may not be deemed to constitute “land located within a mountainous district, the boundary of which is formed,” where the distance of restriction on raising livestock is mitigated pursuant to the instant ordinance.

D) The fact that the straight line between the boundary of the instant application site and the boundary of the instant medical center and the center for senior citizens does not reach one kilometer, which is the distance of livestock raising restriction, is as seen earlier. The instant application falls under the area where livestock raising restriction is restricted pursuant to the instant ordinances, and thus, the grounds for the instant disposition do not exist. The Plaintiff’s assertion on this part is without merit.

B. As to the assertion of deviation and abuse of discretionary power

1) According to Article 8(1) of the Livestock Excreta Act and Article 3(2) of the Ordinance of this case, livestock raising or installing livestock excreta discharge facilities in a zone where livestock raising is restricted. Thus, unlike each disposition of this case, the defendant does not have the discretion to accept an application for permission for development activities and an application for permission for construction. The argument that the disposition of this case was in violation of law of deviation or abuse of discretionary authority is without merit.

2) The Plaintiff’s assertion on this part, even if the Defendant acted on the ground that “the instant disposition is contrary to the principle of trust protection, since the Defendant granted permission for development activities and trust on building permission to the Plaintiff,” it is difficult to deem that the evidence submitted by the Plaintiff alone was an official statement of opinion that the Defendant trusted to the Plaintiff. Furthermore, according to the Plaintiff’s written evidence No. 2, the Defendant’s prior examination on the Plaintiff’s prior examination claim on July 6, 2018, stating that “The prior examination on civil petition is a system that examines the civil petition whether or not with the summary document submitted by the Plaintiff and examines the civil petition documents before submitting the fixed civil petition documents, and that the results of the prior examination do not constitute a regular civil petition disposition at both underground times.” Thus, each of the instant dispositions cannot be deemed to violate the principle of trust protection.

5. Conclusion

The plaintiff's claim is dismissed.

(attached Form omitted)

Judges Sung Ho-ho (Presiding Judge)