2019Guhap63980 Claims for nullification, etc.

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11, K

12. L.

13. M;

[Judgment of the court below]

[Defendant-Appellee]

The Minister of Trade, Industry

Korea Electric Power Corporation

Attorney Lee Jae-tae, Counsel for the plaintiff-appellant

October 25, 2019

December 10, 2019

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs, including the cost of supplementary participation.

On June 13, 2017, the defendant confirmed on June 13, 2017 that the approval of the project implementation plan (0 construction project implementation plan) with respect to Nil-gu, Seocheon-gu, Seocheon-gu.

1. Details of the disposition;

A. On June 2016, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) established an implementation plan for “0 construction projects which install a transformation station, power transmission line (4,283km), support materials (hereinafter referred to as the “instant project”) at the Seocheon-si P, Q, R, S, T, and 12 nuclear power resource (hereinafter referred to as the “instant implementation plan”), and applied for approval of the implementation plan for electric power resource development (hereinafter referred to as the “instant implementation plan”) around June 2016 pursuant to Article 5(1) of the Electric Power Development Promotion Act.

B. On June 13, 2017, the Defendant approved the instant project implementation plan as requested by the Intervenor, and on the same day, published it to U.S. Public Notice of the Ministry of Trade, Industry and Energy (hereinafter “instant disposition”). The Intervenor filed an application with the Central Land Expropriation Committee for adjudication of expropriation (use) of the land, etc. to be incorporated into the instant project, and the Central Land Expropriation Committee rendered a ruling allowing the Intervenor to expropriate and use the said land from January 2, 2019 on the said land on November 8, 2018. D. The Plaintiffs are the owners or residents of the power lines to be installed under the instant project, the land located in the planned area for transmission towers, or the land adjacent thereto, which the Intervenor expropriated and used by the said ruling, included the land owned by the Plaintiffs.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 2 evidence, purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Summary of the plaintiffs' assertion

The instant disposition is null and void due to serious and apparent defects as follows.

A. In the process of obtaining the approval of the instant implementation plan, the intervenor did not undergo the hearing of opinions under Article 5-2(1) and (2) of the Electric Source Development Promotion Act and Article 18-4(1) and (3) of the Enforcement Decree of the same Act

B. During the process of selecting the location of the instant project, the Intervenor constituted an advisory committee on the selection of location, and the representative or professors of civic groups were not included as members, and meetings for the selection of location were held unlawful, and the relevant residents’ opinions were not properly reflected. The Intervenor submitted to the Defendant a written consent of the residents who reside in the Pow in Yan-si P, the project area of the instant implementation plan, to obtain the approval of the instant implementation plan, and the said written consent is likely to have been written with the seal of the residents without permission.

4. Whether the instant disposition is lawful

(a) In order for an administrative disposition to be null and void as a matter of course, there must be an illegality in the disposition, and the reason for such illegality must be serious and objective;

(b) Whether hearing opinions has not been followed;

1) Article 5-2(1) of the Electric Source Development Promotion Act provides that an electric source developer shall, where he/she intends to obtain approval or approval for modification of an execution plan, hear the opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of a project implementation plan through inspection and briefing sessions prior to applying for approval or approval for modification, except for the exceptions prescribed in subparagraphs 1 through 4, and Article 5-2(2) of the same Act provides that an electric source developer shall reflect the opinions of residents, etc. heard pursuant to paragraph (1) in the implementation plan if deemed reasonable, and Article 5-2(3) of the same Act provides that matters necessary for the methods

2) Accordingly, Article 18(1) through (3) of the Enforcement Decree of the Electric Source Development Promotion Act provides that where an electric source developer intends to hear the opinions of residents, etc., he/she shall submit a plan for electric source development business including the outline of electric source facilities and the location and size of the electric source development business area to the head of the Si/Gun/Gu having jurisdiction over the relevant electric source development business area, and the head of the competent Si/Gun/Gu shall publicly announce the outline of the electric source development business, the inspection period and place of inspection of the project implementation plan, the date and place of holding an explanatory meeting, etc. at least once in a daily newspaper, respectively, and shall allow residents, etc. to peruse the project implementation plan by inserting at least 14 days on the Internet homepage of the relevant agency. Article 18-4(1) and (3) of the Enforcement Decree of the same Act provides that an electric source developer shall hold an explanatory meeting to hear the opinions of residents, etc. during the inspection period of the project implementation plan

3) In determining whether to approve an implementation plan for a whole project that affects the safety of life and body of the people, it is desirable to gather consensus from interested parties, including local residents, in advance. On the other hand, the State is granted a broad freedom of formation with respect to how to realize the obligation to protect fundamental rights, such as the safety of life and body of the people through any procedure. Such a series of provisions providing procedures for hearing opinions from residents, etc. in approving the implementation plan for a electric power resource development project are devices designed to ensure objectivity and fairness and to prevent arbitrary progress of electric power resource developer.

4) As to the instant case, there was no evidence supporting that the instant implementation plan was publicly announced within 10 days after June 2016 by the Intervenor, or that an explanatory meeting was held to hear the opinions of the residents, etc. during the pertinent inspection period.

However, according to the purport of the evidence Nos. 4 and 5 and the whole pleadings, it is reasonable to deem that an intervenor has completed prior procedures corresponding to the procedures for public announcement of a project implementation plan, public perusal of a briefing session, and hearing opinions of residents, etc. as stipulated in Article 5-2(1) and (2) of the Electric Power Source Development Promotion Act, and Articles 18(1) through (3), 18-4(1) and (3) of the Enforcement Decree of the same Act. Examining the details and contents thereof, the procedures conducted by an intervenor are deemed to conform to the purport of the procedures for hearing opinions prescribed in the relevant regulations. Thus, the defect is not significant and apparent on the ground that the procedures for perusal and hearing of opinions were not implemented within 10 days from the time of

A) On April 2, 2015, the Intervenor explained the business plan of the substation and the power transmission line to the 54 Ribs of the W Office located in Seo-gu, Seo-gu, Seo-gu, 2015, and sought an opinion from the 54 Ribs. At the time, approximately 60 persons, including the head of the Dong and the residents, were present.

B) On April 9, 2015, the Intervenor: (a) invited the major personnel and residents of the X Center located in Seo-gu, Seo-gu, Seo-gu, Seo-gu, Incheon to explain the construction plan for transformation stations, etc.; and (b) sought 30 residents’ opinions present.

C) On November 17, 2015, the astronomical City publicly announced the perusal of residents and the holding of briefing sessions on the instant implementation plan. The said public announcement was written in detail, including the outline of electric source facilities, the location and size of the electric source development business area, the execution period, and the fact that the residents’ briefing sessions were held at the conference room in the Seo-gu office in Seo-gu, Seo-gu, Seocheon-gu, 2015, Nov. 24, 2015, and that the implementation plan of this case can be perused at the office of the Seo-gu, Seo-gu Office (Industrial Economy and Regional Economic Team) and the office of the conflict management department of the Jung-gu, Seo-gu, 2015. The said public announcement was enforced until December 4, 2015.

D) On November 24, 2015, a resident briefing session was implemented at the Seo-gu Office in Seo-gu, Seo-gu, Incheon. The intervenor explained the contents of the instant implementation plan in the said briefing session and implemented the procedures for hearing the opinions of residents, etc.

C. The act of installing electric power source facilities according to the detailed plan for electric power resource development business based on the government’s basic plan for the supply and demand of electricity is a kind of administrative plan that is executed based on a professional and technical judgment. Although the administrative body is deemed to have a relatively broad freedom of formation in formulating and determining a specific administrative plan, the freedom of formation, which is held by the administrative body, is not unlimited, but is limited not only between the public interest and private interest, but also between the public interest and private interest (see Supreme Court Decision 96Nu8567, Nov. 29, 196). However, as long as the administrative body recognizes the reasonableness of balancing profits and the purpose of the determination of the administrative plan, the decision of the administrative plan is lawful within the scope of the planning discretion.

An intervenor is seeking advice in the selection of a site by organizing a "site Selection Committee" by commissioning a regional representative of residents, a local self-recommended member, and experts in each field, etc. to exercise reasonable and objective administrative plan decision within the scope of planning discretion in the selection of a site for electric power resource development business. This is not attributable to the intervenor’s decision based on the internal regulations of the intervenor, and there is no ground to deem that the intervenor is bound by the decision of the Location Selection Advisory Committee, and that there is no need to include the representatives or professors of civic groups as alleged by the plaintiffs, or that separate procedures are necessary to hear the opinions of the relevant residents. Rather, according to the written evidence Nos. 1 and 3, the assistant intervenor was commissioned as a member of the Committee, such as the head of the anticipated progress area, the representative of the residents, the representative of the civil environmental organization in the Yancheon-si, the academic world, the press, the conflict mediation

(d) the existence of defects under the provisions of the Agreement;

There is no legal basis to acknowledge that the list of written consent is needed in the application for the approval of the instant implementation plan (the intervenor was implementing the special support project for the residents of the village residing around the transmission line in the process of the instant project, but appears to have obtained the residents’ consent to the project). Furthermore, it is insufficient to recognize that the list of written consent submitted by the Plaintiffs was forged by Chapter V of the village, as alleged by the Plaintiffs.

E. Sub-committee

Therefore, the disposition of this case cannot be deemed as serious or objectively illegal grounds. Thus, it cannot be deemed as null and void as a matter of course.

5. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.

The presiding judge, judges and assistant judges;

Judge Han-hee

Judges Park Young-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.