[Defendant-Appellant] Defendant 1 and 2 others (Attorney Park Young-ok, Counsel for defendant-appellant)

Law Firm Law, Attorney Noh Young-dae, Counsel for defendant-appellant

2. The Defendant’s approval for installation of a rural waste comprehensive disposal facility on March 12, 2004 to the head of the Y on March 12, 2004 is invalid.

3. All costs of the lawsuit shall be borne by the defendant.

A. On August 16, 2002 to install a comprehensive waste disposal facility (hereinafter in this case’s waste disposal facility), the head of the Y publicly recruited a site candidate from September 14, 2002 to 30. As a result, on September 30, 2002, the head of the YY selected three and two candidates, such as the Hancheon-si Popnam-ro, and the Hancheon-gun selected by the residents of the YY-gun as a candidate.

B. On the other hand, on September 13, 2002, 13 residents of Eup/Myeon: 210, 25 members of social organizations, 16 members of the Council, 13 members of the Gun, and 16 public officials of the Gun, were commissioned to establish a site selection committee for the location of the instant waste disposal facilities. In addition, on October 15, 2002, at the National Assembly for Selection of Location, voting was conducted for the selection of the site through an on-site response to the site location selection presentation and candidate address. As a result, on the one hand, 168 marks out of 266 marks out of the valid period of validity of the waste disposal facilities, 200 tons of waste disposal facilities were determined as the site subject to comprehensive waste disposal facilities: from October 30 to November 29, 202, 201, the Defendant filed an application for the approval of the installation of the above 30-day waste disposal facilities for 201 meters of the total waste disposal facilities.

[Ground of recognition] Evidence Nos. 1, 2, 4-1 through 6, 5, 6-1 through 5, 7, 8-1, 2, and 8-2 of evidence Nos. 1, 1 through 3 of evidence Nos. 1, 2, 4-1 to 3, and the purport of the whole pleadings

2. The allegations by the parties and the determination thereof

A. Summary of the parties' assertion

(1) The plaintiffs should apply the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7169, Feb. 9, 2004; hereinafter the same and the same Act) not to the Wastes Control Act, since the development area of the waste disposal facilities is not less than 30,000 square meters. However, the number of YY was established in accordance with the Waste Promotion Act and the Enforcement Decree of the Waste Promotion Act (amended by Presidential Decree No. 18514, Aug. 10, 2004; hereinafter the same and the Waste Promotion Act combined with the Waste Promotion Act) and selected a site selection committee at will without complying with the procedures for the installation of the waste disposal facilities of this case. In addition, the defendant approved the installation of the waste disposal facilities of this case pursuant to the provisions of the Waste Control Act and the Enforcement Rule of the same Act, although the location of the site of this case is selected in compliance with the provisions of the Waste Control Act.

Therefore, the defendant's disposition of this case is illegal because it violates the Elimination Act and it is unlawful, and its primary defect is so serious and clear that it is invalid, so the confirmation is sought, and the preliminary defect is at least the defect. Therefore, it should be revoked because it constitutes a cause of lawsuit.

(2) Since the Defendant’s instant waste disposal facilities are 28,650 meters of the created area (breath area), it is not subject to the Waste Control Act, but subject to the Wastes Control Act. Moreover, the location selection of the instant waste disposal facilities was lawful. Accordingly, the instant disposition is lawful.

Even if the location selection of this case was to be carried out under the provisions of the Waste Promotion Act, it is merely a violation of the procedure and cannot be deemed invalid. The revocation lawsuit of this case is unlawful after the lapse of the period for filing a lawsuit. In addition, even if the Plaintiff’s claim is deemed reasonable, negotiations on compensation with residents in the neighboring area were concluded, even if the site selection committee were to be organized and conducted again, the same result would be expected to occur even if the Plaintiff’s claim is deemed reasonable. In light of the fact that a construction contract was concluded and a large amount of budget was executed according to the instant disposition, revocation of the instant disposition is considerably inappropriate for public welfare, and thus,

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) judgment;

(1) Whether the instant disposition is lawful

(A) According to Article 9(1) of the Waste Promotion Act and Article 6 of the Enforcement Decree of the Waste Promotion Act, a waste landfill with a capacity of at least 300 tons per day, with a capacity of at least 150,000 square meters, (2) a waste incineration facility with a capacity of at least 50,000 square meters per day, and (3) a waste landfill with a capacity of less than the above scale, or a waste incineration facility with a capacity of at least 50 square meters, which is prescribed by municipal ordinance of a local government, shall be governed by the Waste Control Act, not the Wastes Control Act. Furthermore, pursuant to Article 3(1) of the Ordinance on the Promotion of Installation of Waste Treatment Facilities and Assistance, etc. to their Environs Areas (Ordinance No. 1697, Jul. 7, 2001; hereinafter the instant Ordinance), a

(B) According to the above evidence, evidence Nos. 2 through 4, evidence Nos. 13-1, 2, and Eul Nos. 15 and 18, and the fact-finding results and the whole purport of the pleading against the order of the court of first instance, the following facts are acknowledged.

1) The net reclamation area of the instant waste disposal facility is 24,720 meters in the size of the instant waste disposal facility, 1,950 square meters in the site for treatment of water, 4,330 square meters in the outside road (gam), 1,980 meters in the inside road, 1,980 meters in the square, and 9,830 meters in the incineration facility and recycling screening facility scheduled to be installed in the future. However, the chemical head of the Gun and the Defendant applied the waste disposal facility installation approval and its approval by applying the Wastes Control Act and the Enforcement Rule of the same Act, under the premise that the size of the instant waste disposal facility is 28,650 meters in the size of the instant waste disposal facility (=24,720 square meters in the net reclamation site + 1,950 square meters in the inside road + 1

2) On the other hand, in the application for the adjudication on the expropriation of land prepared by the YY around November 2004, the development area of the instant waste disposal facilities is 42,810 meters, and it is deemed that the instant waste disposal facilities are included not only in landfill facilities, but also in the instant waste disposal facilities development project promoted by the YYY, and that the instant waste disposal facilities are included in facilities for treating water, incineration facilities, and recycling screening facilities. The area of the instant waste disposal facilities is 42,810 meters, including waste landfill facilities, forest roads, incineration facilities, and waste screening facilities (waste disposal facilities) on February 17, 2005.

(C) Considering the motive and circumstances leading up to the establishment of waste disposal facilities and the structure of the instant waste disposal facilities and the functions of ancillary facilities related thereto by enacting the instant ordinances, it is reasonable to view the development area of the instant waste disposal facilities as 42,810 meters including the entire pure reclaimed facilities and all ancillary facilities ( even if the site for incineration facilities and recycling screening facilities scheduled to be installed later is excluded, the development area is not less than 32,980 square meters at a size of not less than 32,980 square meters). Therefore, relevant procedures, such as the composition of the site selection committee for the installation of the instant waste disposal facilities, etc.,

However, without complying with the provisions of the Waste Promotion Act, the Y selected the location for the installation of the instant waste disposal facility and applied for the approval thereof to the Defendant, and the Defendant approved the said application pursuant to the Wastes Control Act and the Enforcement Rule of the same Act. Therefore, the instant disposition, which was made pursuant to the Wastes Control Act and the Enforcement Rule of the same Act, was unlawful as a disposition that erroneously applied the Act and the Enforcement Rule of the same Act, although the approval should be granted through the relevant procedures, such as the formation of the site selection committee for the installation

(2) Whether the defect of the instant disposition constitutes grounds for invalidation

(A) In order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect must be objectively apparent and serious in violation of the important part of the law. In determining whether the defect is significant and apparent, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective as well as reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006).

(B) However, the instant disposition is deemed null and void as it is not subject to the Waste Control Act and the Enforcement Rule of the same Act, without applying the Act. The difference between the process of the instant disposition and the case where the instant disposition was made by applying the provisions of the Waste Promotion Act for the following reasons. According to Article 9(3) of the Waste Promotion Act and Article 7 of the Enforcement Decree of the Waste Promotion Act, an agency installing waste disposal facilities shall establish a location selection committee in which the representative of residents participated and select the relevant waste disposal facilities within 11 persons, including one chairperson. The structure of the location selection committee shall not exceed two members of the Gun, two members of the Gun, two members of the Gun council, two members of the residents recommended by the representative of residents, two experts recommended by the representative of residents, two experts recommended by the representative of residents, and experts recommended by the representative of residents, and the head of the Gun shall be deemed to have not been able to have been able to produce more than 210 assistant professors of junior colleges or 26 members of the Gun government or more than 106 members of the Gun.

Therefore, the above evidence and evidence Nos. 1, 2, 11-1 through 4, 22, and 23-1, 24-1, 24-2, each of the following circumstances recognized by the testimony of the witness of the party and the witness of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination of the examination.

(3) Whether the assessment is subject to a judgment

As seen above, there is a defect corresponding to the invalidity of the disposition in this case, and in the event that the administrative disposition is null and void, there is no administrative act that has the effect to maintain it, making a judgment under Article 28 of the Administrative Litigation Act. Therefore, the defendant's assertion is without merit without any need to

(4) Whether the period for filing a lawsuit is observed

In the administrative litigation, the period of filing a suit is subject to revocation litigation, and as seen above, the plaintiffs' primary claims seeking confirmation as the disposition of this case is null and void automatically, and therefore, this part of the argument is without merit.

3. Conclusion

Therefore, the plaintiff's primary claim seeking confirmation of invalidity of the disposition of this case is justified, and the judgment of the court of first instance is unfair, and it is so revoked and it is so decided as per Disposition with the confirmation that the disposition of this case is null and void.

Judges Yang Sung-tae

Judge Song-dae