205Ra171 Provisional Measures for Prohibition of Construction Work

The Civil Religious Support Committee against the high-speed high-speed rail, astronomical or astronomical.

Busan Dong-dong 3 1200-0O 801

대표자 위원장 이ㅇㅇ

소송대리인 변호사변ㅇㅇ

Korea Rail Network Authority

Daejeon -0 Dong-dong 452-3

대표자 이사장 정ㅇㅇ

Law Firm O-Law Firm

담당변호사 최0,임ㅇㅇ

Busan District Court Order 2004Kahap2302 dated November 1, 2005

June 30, 2006

1. The appeal by the applicant (appointed party) shall be dismissed;

2. Costs of appeal shall be borne by the applicant (appointed party).

The decision of the first instance shall be revoked. The respondent shall not commence all construction works to be implemented within 14 sections from among the sections of the Busan High-speed Railroad, such as the gold tunnel construction works to be implemented within 14 sections from among the sections of the Busan High-speed Railroad. The execution officer shall publicly notify the purport of the above order in an appropriate manner. If the respondent violates the above order, the execution officer may take appropriate measures to remove it.

1. Determination on this safety defense

A. Main Safety Defenses

The respondent, in order for the applicant (appointed party, hereinafter the applicant) and the appointed party to have the eligibility for the provisional disposition of this case, there should be legally protected interests for them. First, the applicant and the appointed party's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member

B. Determination

Unlike the case where the purport of the application that the respondent seeks as a provisional disposition is defective or not legally permitted, the above circumstances pointed out by the respondent should be judged as the existence of the preserved right in this case. Thus, the respondent's above assertion is without merit without further review.

2. Basic facts

According to the records and the purport of the whole examination, the following facts are substantiated.

A. The applicant filed unreasonable problems in the second stage gold-speed railing and the second stage gold-speed railing and the astronomical mountain section, which will be seen below, to abolish the existing irrigation routes and draw up the safe and environment-friendly alternative routes, mainly the citizens and religious organizations in Busan area are non-corporate associations centered on the gold settlement that pass through the gold tunnel. The designated representative is a traditional temple located in Busan Metropolitan City and the remaining designated parties are asserting that they reside in Busan Metropolitan City and use the gold settlement as rest place. The respondent is a Korean High-Speed Rail Construction Authority (hereinafter “Korea High-Speed Rail Construction Authority”) on the high-speed railing project (hereinafter “high-speed railing and construction project”) after completing the establishment registration on December 31, 2003 pursuant to the Framework Act on Railroad Industry Development and the Korea Rail Network Authority Act, and the Korea High-Speed High-Speed Construction Authority (hereinafter “Korea High-Speed Construction Authority”) is a corporation that comprehensively succeeds to the rights and rights of the Korea High-Speed Construction Authority and the Respondent (hereinafter “Korea High-Speed Construction Authority”).

B. On May 15, 1989, the government established the construction policy for high-speed railroads, and around June 15, 1990, the project plan and Seoul - Daejeon - Daejeon - Daegu - Racing - the basic route (total extension: 409km) passing through Busan. On March 9, 1992, the respondent established the Corporation as above, and on March 30, 1992, the government commenced four sections for the test line between Daejeon.

C. On April 192, 192, the respondent requested that the Minister of Environment (on the present environment department) hold consultation pursuant to the former Environmental Impact Assessment Act (amended by Act No. 5453 of Dec. 13, 1997), after reviewing the above environmental impact assessment report and requesting supplementation of the said environmental impact assessment report on Oct. 22, 1993, the Minister of Environment finally notified the Minister of Information and Communication of the contents of consultation under the above Act on Nov. 2, 1994 through all prescribed procedures.

D. After that, on November 1996, after the respondent selected the forms of the vehicle to TGV by the French Alsomom, and completed most of the design of the instant routes, the Minister of Construction and Transportation applied for approval of the implementation plan for the instant route construction project to the Minister of Construction and Transportation on March 18, 1997, and the Minister of Construction and Transportation approved the implementation plan for the high-speed railway construction project on the instant routes (the location of the project is from Plsan City, the location of the project is from Plsan City to Busan Jin-gu, Busan (the project implementation period is from the date of approval to December 2001), and on the instant route, the construction of the original efficacy ( approximately 13.5 km in the length of the tunnel) and the gold tunnel (within 12.3 km in the length) leading to the settlement of accounts.

E. On July 2, 1998, the respondent divided the high-speed rail construction into two stages, and changed the construction period to complete the respective high-speed rail construction in 2004; on August 6, 2010; and on August 26, 2001, the respondent publicly notified the amendment of the basic plan ( Accordingly, on April 26, 2001, the Minister of Construction and Transportation changed the project implementation period from December 2001 to December 201). Thereafter, on November 13, 200 to the first phase, the approval of the amendment of the actual plan on the route of this case was completed from the Chungcheongnam-si to the 57.2km between Chungcheongbuk-gun and the Cheongbuk-gun-gun, and on April 13, 200, the test section of the high-speed rail was completed.

F. However, since June 2001, in terms of the issue of environmental destruction, stability in the tunnel itself, economic feasibility of the construction of tunnels, etc., the voice demanding the suspension of construction of the tunnels and the full reexamination of the instant routes was raised, and on March 7, 2003, the President directed the suspension of construction of the instant routes and the reexamination of the routes.

G. Accordingly, the applicant side and respondent personnel, and the persons related to the Ministry of Construction and Transportation shall establish the review committee under the jurisdiction of the Prime Minister (hereinafter referred to as the "Review committee") for the purpose of "to shipping agreement on the optimal route after sufficiently considering the economic efficiency, efficiency, stability of the route as well as the attitude of environmental growth with respect to all possible alternative routes on May 12, 2003 through the settlement of gold and astronomical transit routes of high-speed railroads." The review committee recommended 10 persons including six experts from both sides of the committee, including one chairperson, and the chairperson was to submit the first report to the Prime Minister by 20 years including 21 experts from both sides, and the review committee was to submit the first report to review the operation results by 20 years from both sides of the committee to 30 years from the first day after the date of the recommendation.

아 . 위 합의에 따라 양측에서 각자 정책위원 4인 및 전문위원 6인씩을 추천하였는데 , 신청인측은 전문위원으로 문○○(경제성분야), 이ㅇㅇ(노선분야), 조○○(경제성분야), 함○○(지질 · 지하수분야), 이ㅇㅇ(생태계 · 환경분야), 김○○(생태분야)을, 피신청인측 은 전문위원으로 서ㅇㅇ(교통 · 경제성분야), 정ㅇㅇ(노선분야), 이ㅇㅇ(생태분야), 박이 O (지질 · 지하수분야), 최○○(생태계 및 환경분야), 양○○(소음 · 진동· 지질분야)를 각 추천하였다.

I. From May 22, 2003 to July 28 of the same year, the Review Committee made efforts to draw a single agreement on the optimal route through a plenary session and eight-time meeting of experts, on-site answers and answers stations, once a workshop, twice a workshop, etc., but it failed to reach agreement due to differences in opinions of expert committee members, and pursuant to Article 8(3) of the Regulations on Operation of the Review Committee (in the event that there is any matter for which the Review Committee failed to reach agreement, a report including the said matter and the reasons for non-agreement shall be prepared) of the Regulations on the Review Committee, which submitted a written review opinion on the existing route and two alternative routes to the Prime Minister and submitted it to the Office of Prime Minister on July 28 of the same year.

(j) On October 24, 2003, Ulsan District Court 2003Kahap959 decided Oct. 24, 2003, the term "the sons and sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons, etc., who are traditional temples located in the astronomical mountain where the sons of the sons of the sons of the sons of the sons of the sons of the sons of the sons of the Republic of Korea passed. The Claimant of this case filed a provisional

(k) Meanwhile, on April 8, 2004, the Ulsan District Court rejected the application of the sandandandandander of sexual harassment, and dismissed all the applications filed by the sander of sexual harassment and the sander of the sander of the sander of sexual harassment. Accordingly, the applicant of the above case filed a complaint under the Busan High Court Decision 2004Ra41, 2004Ra42 (combined) but all of the appeals filed on November 29, 2004 were dismissed. The above applicants re-appealed by Supreme Court Decision 2004Ma1148, 1149, but all reappeals were dismissed on June 2, 2006.

3. Applicant's assertion

The applicant asserts that the construction plan of the gold tunnel, which covers the settlement of accounts among the routes of this case, is procedural and substantive defect as follows, and thus, the applicant sought provisional measures such as the purport of the application.

A. The assertion of procedural defect

When comprehensively considering the opinions of 12 expert members in the review report submitted by the review committee, six members recommended by the applicant side oppose the existing route, while all six members recommended by the respondent side agreed on the existing route, and the number of opposing votes and oppositions (6:6). Meanwhile, according to Article 7(3) of the Regulations on the Regulations on the Regulations on the Review Committee, the decision-making of the review committee requires the consent of a majority of the incumbent members including the chairperson, and the consent of a majority of the members present. In such a case, the respondent and other persons related to the Ministry of Construction and Transportation should present their opinions or seek alternative plans. However, they arbitrarily interpret the opinion of the ○○○ members recommended by the applicant as consenting to the existing route and arbitrarily interpret the opinion of the 12 members of the review committee (6 members recommended by the applicant and 00 members recommended by the applicant, and 4 members recommended by the respondent, not by the applicant, and 7:5 members recommended by the applicant, so they constitute a serious violation of the existing procedure after the agreement on the existing route.

(b) argument of substantive defect

(1) The problem of groundwater outflow

In the event that the construction on the route of this case is carried out as it is, it is likely that the underground water flows out within the gold tunnel section, and ① the right of survival of the residents of mountain village who use groundwater as drinking water is threatened, ② it may directly threaten the ecosystem due to the exhaustion of the surface water in gold settlement unit, and ③ it is highly likely that the same hot spring in Busan is drained.

(2) Stability issues

1. ① The gold tunnel is designed in a way that it passes through the two ridges classified as a geologically active team. ② The high-speed rails passing through the gold tunnel are currently installed two tunnels (Yok No. 1, 2 tunnels). In addition, two tunnels are designed to pass through the only two tunnels scheduled to be constructed (the mountain tunnel connecting the Seosan subway No. 3 Line, the gold refinery and the northwest Zone) and there is a serious risk to the stability. ③ On the ground through which the gold tunnel passes, there is a side Asian stadium stadium, and the passage of the gold tunnel has a side stadium, and there is no difference between the lower part of the initial file part of the pole in the main stadium and the lower part of the 13m radius, so it may affect the safety of the main stadium due to shock in the construction work.

(3) The issue of environmental destruction.

In the case of a designer, a 100 Sssssssssssssssssssssssss are permanently located and during the river period (from April 15 to July 15, 200) and 40sssssssssssssssss are settled in the sssssssssssssssssssssssssssssssssssssssssssssssss, if theyssssssssssss andssssssssssssssssss, as scheduled,

(4) Economic feasibility issues

After the opening of the high-speed rail on April 1, 2004, the number of users of the high-speed rail was far less than the originally expected number of persons, and the Prime Minister of the present government is also the representative case of failure of policy. However, compared to the case where construction cost for the route of this case reaches six trillion won, the economic feasibility of the route of this case including the gold-speed tunnel is very significant because it is difficult to expect outside the reduction of time and 22 minutes, compared to the case where the construction cost for the route of this case reaches six trillion won.

(a) Right to be preserved in case of provisional disposition;

The purpose of the civil procedure is to relieve infringement on the rights under the private law and to maintain the order of judicial order through the remedy for infringement on the rights under the private law. Therefore, even if there are procedural and substantive defects as alleged by the applicant in the construction plan of the gold tunnel, the fact that there are such defects does not infringe on the rights under the private law of the applicant and the designated parties, it cannot be said that the applicant has the right to seek the prohibition of the commencement of the gold tunnel construction due to the civil procedure.

In addition, Article 35 (1) of the Constitution provides that "All citizens shall have the right to live in a healthy and pleasant environment, and the State and citizens shall endeavor to preserve the environment," thereby recognizing environmental rights as one of the fundamental rights of citizens, it is natural that such rights should be fully guaranteed in the interpretation and application of private law. However, the above provision on environmental rights as fundamental rights under the Constitution cannot be deemed as granting specific private rights directly to individual citizens because the contents and crime of the environment subject to protection, the scope of the right holder being the subject of rights, etc. are unclear, and it is difficult to say that this provision is not sufficient to recognize environmental rights, which are private law rights, and therefore, if recognizing environmental rights as a right under private law, the freedom and rights of the other party cannot be inevitably restricted, so that to recognize environmental rights, the subject, contents, and the exercise of rights should be specifically established in light of the purport or reasoning of the relevant law. It should be determined by the National Assembly to harmonize the contents and the exercise of private rights with each other's rights.

Therefore, the petitioner cannot directly file a claim against the respondent for the prohibition of construction works on some sections of high-speed railroads due to the constitutional rights such as Article 35(1) of the Constitution concerning environmental rights or natural defense rights, and the provisions of the Framework Act on Environmental Policy such as the Framework Act on Environmental Policy cannot be interpreted as generating specific claims (see, e.g., Supreme Court Order 2004Ma148, 1149, Jun. 2, 2006). Thus, the destruction of the natural environment of settlement of accounts due to the outflow of groundwater claimed by the applicant cannot be justified even if it is true.

However, through the examination process of this case, specific and practical attack and defense have been conducted between the parties regarding the validity of the process of reviewing the routes, the environmental destruction due to the construction of the gold tunnel, the stability of the tunnel itself, etc. In fact, these points are important issues in the provisional disposition of this case, and thus, it is also necessary to review the validity of the main warranty of defects in the procedure and the substantive nature. However, in the case of a specific infringement of rights, the legitimacy of the assertion in the relevant item should also be examined.

B. As to procedural defects

As a result of the review of the above review report, ○○○ Special Committee stated that the problems are relatively low compared to those of the alternative routes examined together with the existing routes as a witness in the first instance court. 'I' present at the court of first instance as a witness in the field of logistics and traffic, and compare the existing routes with the alternative routes in terms of the structure of route, construction cost (including compensation), civil petition and construction-related issues. As a result, it is confirmed that the existing routes are relatively less problematic than the alternative routes, and that the existing routes are less problematic than those of the alternative routes, and it is reasonable to consider the above review report as the applicant's opinion on the premise that the additional expenses, logistics expenses, etc. due to the time required for the review, construction delay are limited to the existing routes, and that it is no more reasonable to consider the existing routes as the result of the review of the report on the alternative routes than the existing ones of the committee's opinion on the premise that it is reasonable to understand the existing routes as the result of the review of the alternative routes.

Meanwhile, according to Article 7 (3) of the operational rules of the Review Committee, the decision-making of the Review Committee is required to be held with attendance of a majority of the members including the chairperson and to pass a resolution with the consent of a majority of members present. However, in light of the fact that there is no provision recognizing binding force on the opinions of the Review Committee members in the above agreement and the operational rules of the Review Committee, it can be said that both sides are not bound by the opinion of the Review Committee at the time of organizing the Review Committee, and therefore, the above

C. As to the substantive defect

(1) The problem of groundwater outflow

According to the records, it is difficult to conduct a large-scale analysis of the current construction process of excavating ground water from Busan-dong to 2-dong, and the high-speed railing ground water is anticipated to flow out at the time of excavation. However, the high-speed railing floors passing through the settlement of accounts are very rare and high-rises of underground water in order to prevent the flow of underground water from spreading out of the areas where the water tunnels pass through the e-mail tunnels, and to prevent the flow of underground water from spreading out of the e-mail tunnels, and to prevent the flow of underground water from spreading out of the areas where the water tunnels pass by the e-mail tunnels. On the other hand, there is no concern that the flow of underground water is lower than that of the e-mail tunnels to prevent the flow of underground water from spreading out of the areas where the water tunnels pass by the e-mail tunnels.

Meanwhile, in light of the fact that the gold tunnel is far away from the East Hot Spring area, approximately approximately 2.1 Km and approximately 100 meters high compared to the ground of the East Hot Spring area, there is insufficient evidence to view that the construction of this case is likely to raise hot spring water in the East Hot Spring basin due to the construction of this case.

(2) Stability issues

1. ① The statement of the witness at the first instance court ○○○○○○○○ is a active fault studio, which is likely to have a strong dust to the extent of direct impact on the safety of high-speed railroads. It is insufficient to view that a tunnel, which is an underground structure, is vulnerable to earthquakes compared to a bridge or general surface structure due to civil engineering engineering, and there is no other supporting material. ② There is no fact that four tunnels are planned to be installed intensively in the vicinity of the only studio, but as seen in the example of Seoul Southern mountain Tunnels, if there is a need for intensive installation of several tunnels in a certain area, designing and executing a project so that it does not affect each other through scientific and detailed calculation, taking into account various conditions from the time of the initial design, is likely to be sufficiently possible in terms of the current civil engineering technology, and in fact, it is difficult to view that an individual's interests in the above provisional disposition, such as reinforcement of a private right, should not have an adverse impact on the cross-project in the sections crossing with other Asia, as well as to the extent of stability in the above.

(3) The issue of destroying the implementation environment

In a case where the ownership of a observer is directly infringed due to the construction of the gold tunnel, as well as the cases where the ownership of the observer's land is directly infringed, and where there is an infringement of the environmental interest recognized as having value as a single living interest in the fish shed, such as the landscape, view, and lighting and pleasant religious environment, which has been created by the panator, and such infringement level is recognized to exceed the generally accepted level in light of social norms, the panator may seek the prohibition of the commencement of the gold tunnel as an exclusion or prevention of such infringement. In such a case, whether the infringement goes beyond the generally accepted level in light of social norms shall be determined by comprehensively taking into account all the circumstances such as the nature and degree of the damage, the public performance and social value of the damaged interest, the form of harmful act, the public nature and social value of harmful act, the public value of harmful act, the possibility of preventive measures or the avoidance of damage, the public law regulation, and the future relationship of local land use (see, e.g., Supreme Court Decision 98Da47528, Jul. 27, 19999).

However, according to the records, a fish farmer is located vertically from the entrance of a gold tunnel at a place less than 206 meters wide, 1,500 meters wide, a high-speed train passes the tunnel at a speed of 300 meters long, vibration measurement value for two meters above the entrance and exit of the tunnel which is anticipated to be the largest if the vibration passes through the tunnel (the value actually measured in the entrance of the high-speed gun on the side of the respondent - the high-speed rail tunnel located in Daejeon) within the permissible scope stipulated in Article 37 of the Enforcement Rule of the Noise and Vibration Control Act, such as 56.9dB of the high-speed tunnel located within the permissible scope under Article 37 of the Noise and Vibration Control Act; the noise and vibration of the parties in the process of the high-speed tunnel excavation so developed as to the extent that it does not affect the ground and soil, and it is difficult to see that the high-speed train is likely to actually use the high-speed rail and the high-speed rail construction work at a certain level after completion of the construction work.

(4) Economic feasibility issues

Since the demand forecast and passenger status of the high-speed rail claimed on the part of the applicant are merely the data at the time when the high-speed rail is opened to the exclusive line for six months (Seoul - Daegu) and only the number of minutes after the lapse of six months, it seems that the number or all sections at the present time may considerably change. In addition, in light of the fact that the total required time of the field of the high-speed rail section in Seoul - Busan - within 2 hours (1 hour and 56 minutes) is less than 2 hours (1 hour and 56 minutes expected), it cannot be deemed that the 22 minutes or 25 minutes reduced to the new construction of the part of the second-stage section (Seoul - Daegu) including the gold-speed tunnel is an unriped or short time.

In addition, unless there are special circumstances in the provisional disposition under civil law, the interests of the public or a third party, such as the interests of the public or the general public, can not be regarded as the preserved right, which serves as the basis of the provisional disposition, by nature as the basis of the provisional disposition. Therefore, the applicant's above assertion seems to be either mother or without merit.

5. Determination as to the necessity of preservation

As seen above, the procedural and substantive defect alleged in the petitioner's side is judged to be within the scope that the cause is not actually nonexistent or even if it is not so, there is insufficient evidence to view that there is any other necessary reason to avoid significant damage or prevent imminent danger in connection with the instant construction project.

In addition, in consideration of the fact that the application for provisional measures to prohibit the commencement of construction works for the deep-sea tunnels among the routes of this case was finally dismissed by the Supreme Court, and it became practically impossible to open the deep-sea railroads to Busan Station without going through the gold tunnel, it is difficult to determine the need to urgently suspend the construction of the red-sea tunnels for the routes of this case, which are implemented as the national affairs project,.

6. Conclusion

Therefore, the application for provisional disposition of this case shall be dismissed as it is without merit, and the decision of the court of first instance shall be just and the appeal of the applicant is dismissed as it is without merit. It is so decided as per Disposition.

on June 30, 2006

Maleman (Presiding Judge)

English in English

Woo-man

List of the Appointed Persons;

A person shall be appointed.

A person shall be appointed.