(영문) 서울고등법원 2016.1.28. 선고 2015누61810 판결

The judgment of the court of first instance is revoked. The defendant's approval of the execution plan for electric power resource development business (No. 5 and 6 reported nuclear power resource development business) against the defendant joining the defendant on January 29, 2014 shall be revoked.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's explanation concerning this case is as follows: (a) changing the "Environmental Film Evaluation" of No. 6 of the judgment of the court of first instance No. 19 into "Environmental Impact Assessment"; (b) changing the part of the judgment of the court of first instance as set forth in paragraph (2) below; and (c) except for the determination of the plaintiffs' assertion emphasized or added in the party trial as set forth in paragraph (3), it is identical to the reasoning of the judgment of the court of first instance; and (c) therefore,

2. The modified part;

○ In the first instance judgment, the first instance court’s 4 pages 15 to 17 of the same pages are modified as follows.

The procedures for gathering opinions conducted by a supplementary participant are procedures for gathering opinions under Article 103 of the Nuclear Safety Act, which cannot substitute the procedures for gathering opinions of residents, etc. prescribed in the Electric Power Source Development Promotion Act, and it is necessary to assist relevant experts in nuclear energy or its related facilities. The procedures for gathering opinions on the original development project (hereinafter referred to as the "project in this case") subject to approval of the disposition in this case cannot be deemed as having been actually made available for the residents or having presented their opinions. In addition, the procedures for gathering opinions on the items stated in the site investigation report have not been followed, but the procedures for gathering opinions on the project in this case have not been carried out once again, and a public hearing on the project in this case has been poorly carried out. Accordingly, the supplementary participant did not practically undergo the procedures prescribed in Article 5-2 of the Electric Power Source Development Promotion Act, and the disposition in this case is unlawful.

In the fourth sentence of the first instance judgment, the corresponding part in attached Form 4 shall be added to the Enforcement Decree of the Electric Power Development Promotion Act, and the corresponding part in attached Form 4 shall be added to the former Nuclear Safety Act (amended by Act No. 13078, Jan. 20, 2015) among the related Acts and subordinate statutes of 18, and the Enforcement Rule of the Electric Power Development Promotion Act as stated in attached Table 4 shall be added to

○ The 11th judgment of the first instance is amended from 17th to 12th 5th eth eth.

4) Illegality of the procedure for gathering opinions in the instant disposition

A) Article 5-2(1) of the Electric Power Source Development Promotion Act provides that "where an electric power source developer intends to obtain approval of an implementation plan for electric power source development business, he/she shall hear opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of the relevant project through the inspection and briefing session of the implementation plan." Article 5-2(1) of the same Act provides that "where the aforementioned procedures are not followed by other Acts and subordinate statutes," "where residents, etc. are not allowed to gather opinions pursuant to other Acts and subordinate statutes." Meanwhile, Article 103(1) of the Nuclear Safety Act provides that the procedures for collecting opinions of residents, such as public inspection and public hearing within the draft of the evaluation plan for radiation environmental impact assessment, shall be prescribed in the contents of the evaluation plan for radiation impact assessment (the plaintiff has no evidence to see that there is no fact submitted to the defendant, and that the electric power source developer is reasonable to reflect opinions of residents, etc. listened to the implementation plan under paragraph (1)."

B) Examining the aforementioned evidence in light of the overall purport of the statements and arguments in the evidence Nos. 1 and 3 (the evidence with a serial number included) as well as the overall purport of the arguments, Ulsan-gun made the draft environmental impact assessment report containing radiation for about 40 days from Aug. 25, 201 to Oct. 13, 201; the supplementary participant made the draft public inspection through the Economic Newspapers, Ulsan-do, Busan-gun's Office on Sept. 1, 201; the supplementary participant made the first public inspection of the draft environmental impact assessment report including radiation; the supplementary participant made the public inspection of the draft on Aug. 25, 201 through the Economic Newspapers, Ulsan-gun's Office on Sept. 1, 201 through the public inspection procedure; and the supplementary participant held the presentation report on the instant project by about 400 residents in the third floor of the Dong-gun-gun's Office on Oct. 14, 2012; the supplementary participant again held the presentation report through the International Economic Examination Center on Feb. 20.

C) Examining the above facts in light of the relevant statutes, ① the procedure for gathering opinions from the residents under the Nuclear Safety Act is conducted through the public inspection and public hearing of environmental impact assessment reports. This appears to substitute for the procedure for gathering opinions from the residents through the public inspection and perusal of the project implementation plan. ② Relevant experts have participated in the draft of environmental impact assessment report as well as the public inspection of the above documents and the public hearing are held. It can be said that the opportunity for the residents to present their opinions is substantially guaranteed. ③ The scope of the residents to present their opinions on the project of this case is the same as that of the residents residing in the area where the project of this case is anticipated to be directly affected by the public inspection of the environmental impact assessment report. ④ The supplementary intervenor provided the residents' opinions to the local government or the relevant central administrative agency having jurisdiction over the area subject to the environmental impact assessment prior to the procedure for gathering opinions from the residents of this case and the opportunity for the residents to gather opinions from the public inspection of the environmental impact assessment report and the procedure for collecting opinions from the residents of this case.

3. Determination on the plaintiffs' additional assertion in the trial

A. The plaintiffs' assertion

Article 6(1)17 of the Enforcement Decree of the Electric Power Source Development Promotion Act is deemed to have obtained prior approval under Article 10(3) of the Nuclear Safety Act when an electric source developer obtains approval of the plan for electric source development business. Nevertheless, Article 15(3)5 and Article 15(5) of the Enforcement Decree of the Electric Power Source Development Promotion Act stipulate that matters concerning the site shall be included in the plan for electric source development business only when an electric source developer intends to obtain prior approval under Article 10(3) of the Nuclear Safety Act, and that application for prior approval, radiation environmental assessment, and site investigation report shall be attached thereto. As such, Article 15 of the Enforcement Decree of the Electric Power Source Development Promotion Act provides that an electric source developer is entitled to prior approval beyond the purpose of the prior approval under the Nuclear Safety Act due to the legal fiction of the approval of the plan for electric source development business, and accordingly, it goes beyond the scope of delegation and submission of the plan for electric source development business, and even if an electric source developer violates Article 37(2) and Article 5 of the Enforcement Decree of the Electric Source Development Promotion Act.

B. Determination

1) Contents of the relevant provisions

A) Article 5(3) of the Enforcement Decree of the Electric Power Source Development Promotion Act lists the matters to be included in an execution plan for electric power resource development business. Of them, Article 5(3) of the Enforcement Decree of the Electric Power Source Development Promotion Act provides that "other matters prescribed by Presidential Decree concerning electric power resource development business" shall be included in an execution plan for electric power resource development business in addition to the contents of subparagraphs 1 through 6 of the same paragraph. According to the delegation, Article 15(3) of the Enforcement Decree of the Electric Power Source Development Promotion Act provides that "where construction of a nuclear power reactor and related facilities intends to obtain prior approval on a site pursuant to Article 10(3) of the Nuclear Safety Act, matters concerning the site shall be included" and Article 15(5) of the Enforcement Decree of the same Act provides that "in cases of indicating matters concerning a site for a nuclear power reactor and related facilities under subparagraph 5 of the same Article, a vice governor prior to an application for approval, an environmental impact assessment report, and a site investigation

B) Meanwhile, Article 6 Subparag. 17 of the Electric Power Source Development Promotion Act provides that “When an electric source developer has obtained approval for an execution plan for electric source development business under Article 5 of the same Act, it shall be deemed that a prior approval has been obtained under Article 10(3) of the Nuclear Safety Act.” Article 10(3) of the Nuclear Safety Act provides that “The Nuclear Safety Commission may approve a site after reviewing an application for prior approval by a person who intends to construct a nuclear power reactor and related facilities before applying for construction permission.” Article 6(4) of the same Act provides that “Any person who has obtained approval for a site under paragraph (3) may execute construction works within the scope prescribed by Ordinance of the Prime

2) Whether the legislative limitation of delegation under Article 15(3) of the Enforcement Decree of the Electric Power Source Development Promotion Act deviates or infringes on the fundamental rights of

A) Comprehensively taking into account the aforementioned provisions, the Enforcement Decree of the Electric Power Source Development Promotion Act, and the related provisions of the Nuclear Safety Act, the term “prior approval of the site for electricity generating reactors and related facilities prescribed by the Nuclear Safety Act” means that prior to granting construction permission for electric power reactors and related facilities under Article 10(1) of the Nuclear Safety Act, the case where an operator intends to excavate the site where the nuclear reactor facilities are installed and build concrete construction works for the protection and reinforcement of the base of the site at the point where the operator intends to install the nuclear reactor facilities (Article 7(1) of the Enforcement Rule of the Nuclear Safety Act) constitutes a procedure selected at the operator’s request. The contents of the Electric Power Source Development Promotion Act and the relevant provisions of the Enforcement Decree of the same Act are interpreted to mean that prior approval of the site under Article 10(3) of the Nuclear Safety Act is deemed to have been obtained only when an electric power source developer intends to obtain prior approval of the site for electric power generation reactors and related facilities,

B) In light of this, the plaintiffs' above assertion cannot be accepted, which is premised on the effect of prior approval of the site under Article 10 (3) of the Nuclear Safety Act even though an electric power resource developer did not include the matters concerning the site for electric power reactor and related facilities in the execution plan for electric power resource development business and obtained approval of the execution plan

4. Conclusion

If so, the plaintiffs' lawsuits listed in the attached Form 2 and 3 are dismissed, and the plaintiffs' claims listed in the attached Form 1 shall be dismissed as it is without merit, and the judgment of the court of first instance shall be justified with this conclusion, and all appeals of the plaintiffs shall be dismissed. It is so decided as per Disposition.