[1] Whether a person who is not the direct counter-party to an administrative disposition and is not the party to the administrative disposition, is entitled to standing to institute a revocation lawsuit against the residents in the affected area anticipated to be affected by the disposition (affirmative in principle

[2] The case affirming the judgment below holding that the above disposition was unlawful on the ground that the construction of a new factory by local residents Gap et al. was not permitted on the site including the part where a brick factory was removed and the existing factory was not constructed, and the construction of a new factory was approved on the site where Gap et al. filed a lawsuit for revocation

[1] Article 12 of the Administrative Litigation Act / [2] Articles 13(1) and 20(1) of the former Industrial Cluster Development and Factory Establishment Act (Amended by Act No. 9401, Jan. 30, 2009); Article 26 subparag. 1 [Attachment 1] and 3(b) of the former Enforcement Decree of the Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 21665, Aug. 5, 2009); Article 12(1) and 13 of the former Enforcement Decree of the Act on Special Measures for the Designation and Management of Areas under the former Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 21670, Aug. 5, 2009); Article 18(1)5 and 23(2)1 of the former Enforcement Decree of the Act on Special Measures for the Designation and Management of Areas under the former Industrial Cluster Development and Factory Establishment Act (Amended by Presidential Decree No. 21670, Aug. 5, 2009)

[1] Supreme Court Decision 2006Du14001 Decided December 22, 2006 (Gong2007Sang, 238) Supreme Court Decision 2009Du2825 Decided September 24, 2009 (Gong2009Ha, 1770)

See Attached List of Plaintiffs (Law Firm Barun, Attorneys Lee Sung-hun et al., Counsel for the plaintiff-appellant)

South Ocean Market

Both Yong-U.S. Co., Ltd. (Bae & Yang LLC, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu32326 decided September 28, 2012

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal by the defendant and the defendant assistant intervenor are also examined.

1. As to the ground of appeal on the legitimacy of the instant lawsuit

A. A third party, who is not the direct counter-party to an administrative disposition, filed a revocation lawsuit on the ground that his/her environmental interest is infringed or is likely to be infringed upon by the administrative disposition, is recognized as standing to sue to prove that his/her environmental interest is protected individually, directly, and specifically by the relevant laws and regulations or the relevant laws and regulations. However, in cases where the scope of the right of influence that is anticipated to be infringed on the environment due to the business, such as the act done by the disposition in accordance with the relevant laws and regulations or the relevant laws and regulations, it may be anticipated that the residents in the affected area will directly and seriously cause environmental damage due to the relevant disposition. Such environmental interest is a direct and specific interest that is individually protected for the individual residents, and the standing to sue is recognized as a legally protected interest (see Supreme Court Decision 2006Du14001, Dec. 22, 2006).

Examining the reasoning of the judgment of the court of first instance in light of the above legal principles, the plaintiffs are justified in holding that they are qualified to seek revocation of the disposition of this case which approved the construction of the factory of this case as residents living in the area subject to prior examination of environmental impact on the construction of the factory of this case, and there is no error of law by misapprehending the legal principles on standing to sue in administrative litigation

B. Meanwhile, according to Articles 13(1) and 2 subparag. 14 of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9401, Jan. 30, 2009; hereinafter “former Factory Establishment Act”), if a person intends to build or expand a factory, the construction area of which is at least 500 square meters, or change a type of business (hereinafter “factory establishment, etc.”), he/she shall obtain approval from the competent authority under the conditions as prescribed by the Presidential Decree. Here, the construction of a factory means either constructing a new building or installing manufacturing facilities by changing the use of an existing building to the use of a factory. According to Articles 13-2(1)16 and 14 of the same Act, a person who has obtained approval for a factory establishment, etc. may separately obtain a construction permit or building report under the Building Act, or order a person who has obtained approval for a new construction or alteration of a new factory, etc., to implement the relevant project for a specific use area for which he/she has not obtained approval for a new construction permit or alteration, etc.

In light of the above provisions and purport of the former Act on the Establishment of Factory concerning the contents and effect of approval for the establishment of a factory, even if construction of the factory building of this case had already been completed at the time of the closing of argument in the court below and its restoration to its original state became impossible by social norms, it cannot be said that the situation where the plaintiffs' environmental interests were infringed by it was terminated, and the plaintiffs still have a legal interest in seeking the revocation of the disposition of this case. Thus, the court below did not err by misapprehending the legal principles on the interest of litigation of administrative litigation and by misapprehending the legal principles on the interest of litigation,

2. As to the grounds of appeal on the requirements for approval of factory construction under the former Act and subordinate statutes

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and determined that the building area of the factory of this case is more than 1,865 square meters in total with the floor area of buildings for the installation of manufacturing facilities and their horizontal projection area, and aggregate is more than 1,00 square meters in the shipping room through labeling, and cement can be sent through cement conditioning and but a specific amount of raw materials through a concrete mixture, and finally measured and mixed with concrete can be manufactured with concrete at the same time. Thus, the court below determined that the factory of this case constitutes manufacturing facilities that constitute manufacturing process by combining concrete mixtures, Belgium, interim storage containers, etc. with concrete mixtures, and the factory area of this case is more than 1,865 square meters in total with the floor area of the building for the installation of manufacturing facilities and its horizontal projection area, and that the factory of this case does not constitute an urban development project under the former Enforcement Decree No. 201,265, Jan. 1, 2002>

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the requirements for approval of factory construction under the former Act and subordinate statutes, etc.

3. As to the grounds of appeal on restrictions on activities under the former Act on Special Measures for Designation and Management of Development Restriction Zones

The lower court, based on its adopted evidence, found the facts as indicated in its reasoning, and determined that the construction of the factory of this case, which was applied to the Defendant by the Intervenor Supportive Industries Co., Ltd. (hereinafter referred to as the “Supplementary Intervenor”) before and after the lawsuit was completed, did not constitute an exceptionally permitted act of altering the previous brick factory under Article 12(1)8 of the former Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 9436, Feb. 6, 2009; hereinafter referred to as the “former Act”) to the extent that the construction of the factory of this case, including the part of the site of this case, including the part where the registration of factory was revoked on a total size of 2,06 square meters, and the part where the said brick factory was not constructed, with the total floor area of 1,056 square meters in total, 1,901.76 square meters in total on the site of this case.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the alteration and reconstruction of the use of buildings or the restriction on activities under the former Act.

4. As to the remaining grounds of appeal

For the reasons indicated in its holding, the lower court determined that the construction of the instant factory for which the Intervenor applied for approval to the Defendant by the Intervenor was unlawful on the ground that it cannot be permitted on the instant land located within a restricted development zone and an overpopulated suppression zone pursuant to Article 20(1) of the former Factory Establishment Act and Article 12(1) of the former Development Restriction Zone Act.

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on binding force of the Board of Audit and Inspection decision, restrictions on cancellation or withdrawal of beneficial administrative disposition, or judgment of assessment, etc.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Intervenor and the remainder are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Kim Yong-deok (Presiding Justice)