(영문) 인천지방법원 2015.4.16.선고 2014구합2526 판결

1. Of the instant lawsuit, the part on which the Defendant seeks the revocation of the public announcement (No. 2014-34 of the Yeonsu-gu Incheon Metropolitan City public notification No. 2014-51 of the Yeonsu-gu Incheon Metropolitan City public notification) to abolish the plan for the placement of liquefied petroleum gas charging stations and the public notification on the installation standards (No. 2014-51 of the

2. On June 17, 2014, the Defendant’s disposition of return of the application filed by the Plaintiff to the Plaintiff is revoked.

3. The costs of lawsuit shall be borne by each person;

Notice of Claim

The main text of paragraph 2 is as follows. The defendant's notification to abolish the plan for the placement of liquefied petroleum gas charging stations and the public notification of installation standards made on June 17, 2014 shall be revoked.

Reasons

1. Details of the disposition;

(a) Application for permission for a liquefied petroleum gas filling business filed by a Si/Gun Seoul Special Metropolitan City Energy Co., Ltd. (hereinafter referred to as “Si/Gun Special Metropolitan City”) and the first and second nonpermission disposition and the second administrative litigation

1) On February 26, 2010, the energy from the Do-dong, Yeonsu-gu, Incheon Metropolitan City (hereinafter “Seoul Metropolitan City Energy Project Site”) filed an application for permission for the filling of liquefied petroleum gas with respect to the Defendant’s land located in the development-restricted zone, and on March 5, 2010, the Defendant received the first non-permission disposition from the Defendant on the ground that the placement plan was not formulated. The energy filed a lawsuit seeking the revocation of the said non-permission and received a final and conclusive judgment in favor of the Defendant (Seoul District Court Decision 2010Guhap1570, Seoul High Court Decision 2010Du3033, Supreme Court Decision 2011Du9768, respectively).

2) On November 16, 2011, the Defendant, in accordance with the foregoing final judgment, made a second rejection of the said application on the ground that he/she failed to secure more than five kilometers of the road distance passing through the development restriction zone of Yeonsu-gu Incheon Metropolitan City, and the energy in △△ City filed a lawsuit seeking revocation of the second rejection disposition and received a final and conclusive judgment in favor of the Defendant (In Incheon District Court Decision 2012Guhap793, Seoul High Court Decision 2012Nu35674, Seoul High Court Decision 2013Du10311, respectively).

(b) Application for permission for a liquefied petroleum gas filling business with 00 and the first nonpermission disposition and the progress of administrative litigation thereon;

On February 19, 2013, this0 filed an application with the Defendant for permission for the filling business of liquefied petroleum gas on the Yeonsu-gu Incheon, Yeonsu-gu, Incheon (hereinafter referred to as "Ga○○ project site") and three parcels located in the development restriction zone, and on February 22, 2013, the Defendant applied for the designation and management of development restriction zones.

"Where the distance under subparagraph 2 is secured for each Si/Gun/Gu" in the proviso to Article 7 subparagraph 2-2 (a) of the Enforcement Rule of the Measures Act (hereinafter referred to as the "Enforcement Rule of the Act on the Protection and Investigation of Buried Cultural Heritage") means where the road distance passing through each Si/Gun/Gu development restriction zone is at least 2 km in the case of installing a gas station and at least 5 km in the case of installing a liquefied petroleum gas charging station for automobiles. In the case of a 00 project site, the 00 project site has not been secured at least 5 km in the road passing through the Yeonsu-gu Incheon Metropolitan City development restriction zone. The 00 project site is an area of buried cultural heritage under Article 4 of the Act on the Protection and Investigation of Buried Cultural Heritage and Article 3 of the Enforcement Decree of the same Act, and was subject to the first non-permission disposition on the ground that it is an area where cultural heritage preservation measures should be taken pursuant to Article 9 of the same Act and Article 7 of the Enforcement Decree of the same Act. Accordingly, 000 obtained a final judgment (the Seoul High Court).

C. The defendant's plan to place a liquefied petroleum gas filling station for automobiles in the Yeonsu-gu Incheon Metropolitan City development restriction zone and the public notice of the installation standards (hereinafter referred to as the "public notice of this case") and the second non-permission disposition on this ○○, the third nonpermission disposition on energy, and the third non-approval

1) On February 12, 2014, the Defendant notified that "the Defendant is applying for business permission again because the Defendant is in the process of establishing a plan for placement," and announced "the plan and the corresponding installation of a liquefied petroleum gas charging station for automobiles in Yeonsu-gu Incheon Metropolitan City on April 14, 2014," and announced "the plan and the corresponding installation standards for the designation of applicants for the selection of an operator of a liquefied petroleum gas filling station for automobiles in the Yeonsu-gu Incheon Metropolitan City on April 28, 2014, and the change of the criteria for selection on May 7, 2014, respectively.

2) After May 7, 2014, the Defendant: (a) rendered a second non-permission disposition to deny the application for permission for a liquefied petroleum gas filling business on the ground that the instant application filed before the plan for placement was non-permission; and (b) made a second non-permission disposition to deny the application for designation of a business operator in accordance with the notification and announcement by the Defendant on the ground that the application was re-scheduled; and (c) made a third non-permission disposition to deny the application for the same purport with respect to energy.

3) However, on February 4, 2014, this0 filed an application for indirect compulsory enforcement with the Incheon District Court 2014No. 33 to compel the Defendant to make a second disposition in accordance with the purport of the final and conclusive judgment revoking the first non-permission disposition, and on May 2, 2014, the Defendant received a decision of acceptance that “if the Defendant did not make a second disposition in accordance with the said final and conclusive judgment, he/she would pay KRW 2,00,000 per day until the time of the disposition.” Accordingly, the Defendant filed an appeal with Seoul High Court 2014Ra148, but the Defendant was dismissed on May 29, 2014, and the said decision became final and conclusive as is.

4) In the above indirect compulsory performance case, the defendant asserted that the notice of the selection of a business operator and the third non-permission disposition based on a new placement plan are re-dispositions in accordance with the above final judgment, but the above court cannot be deemed to have issued any disposition on this 00 only by the above public notice, and the above disposition is contrary to the binding force of the previous final judgment, and its defect is significant and obvious, and thus, the defendant still has the obligation to re-dispositions in accordance

5) On March 11, 2014, Incheon District Court 2014, filed an application for indirect compulsory enforcement with the Defendant to compel the Defendant to make a re-disposition of the previous application for permission in accordance with the purport of the previous final and conclusive judgment, and on April 17, 2014, the Defendant received a partial decision to accept the payment of KRW 3,000,000 per day until the time of the disposition in case the Defendant did not make a re-disposition in accordance with the above final and conclusive judgment. Accordingly, the Defendant filed an appeal with Seoul High Court 2014Do115, but the Defendant was dismissed on May 26, 2014, and the said decision became final and conclusive as is.

D. The Plaintiff’s application for permission for the filling business of liquefied petroleum gas, the abolition of the instant notice, and the Plaintiff’s non-permission

1) On June 2, 2014, the Plaintiff filed an application for permission for the filling business of liquefied petroleum gas with respect to the Plaintiff’s business site located in Yeonsu-gu Incheon, Yeonsu-gu, Incheon. (hereinafter “instant business site”) with the Defendant.

2) However, the Defendant’s decision of indirect compulsory performance became final and conclusive by the application of the energy of ○○ and △△△.

On June 17, 2014, a public notice to abolish the instant public notice was issued, and thereafter, the Plaintiff’s said public notice was rejected on the grounds that the same day cannot give the Plaintiff an opportunity to select as a business entity due to the abolition of the instant public notice.

(e) Permission disposition for the energy of △△△ and the result of the third non-permission disposition and administrative litigation on this ○○; and

1) After September 5, 2014, the Defendant issued a three-dimensional non-permission disposition rejecting an objection pursuant to Article 7 of the Enforcement Rule of the Development Restriction Zone Act on the ground that “The distance between the energy project site in Do, Do and the instant project site dealt with to ○○ on the same day is less than five kilometers in the same direction.”

2) Accordingly, the Incheon District Court 2014Guhap1684 filed a lawsuit seeking the revocation of the third non-permission disposition, and filed a lawsuit seeking the revocation of the permission disposition on energy under 2014Guhap32381, but the court rendered a judgment dismissing all the claims of ○○ on the ground that the third non-permission disposition on the △○○ is legitimate on the ground that more than two charging stations are not required to be installed, and that the third non-permission disposition on the △○○ is legitimate. The appeal by ○○ filed by the Seoul High Court 2015Nu3409 and the court 2015Nu355388).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 6-1, 2, Eul evidence 1-1 to 6, 2-13, and the purport of the whole pleadings

2. Whether the part of the lawsuit of this case seeking the revocation of the public notice to abolish the public notice of this case is legitimate

A. The plaintiff's assertion

Even if the Defendant issued a disposition to grant permission for a liquefied petroleum gas filling business to the Do governor, it is possible to additionally grant permission for the Plaintiff’s permission for a liquefied petroleum gas filling business, so the instant notice shall not be abolished, and the Defendant, despite the fact that the Plaintiff’s above application satisfies the standards for the establishment of the instant notice, should be examined, the public notice to abolish the instant notice is unlawful and thus, the public notice to abolish the instant notice should be revoked.

B. Determination

Administrative disposition, which is the object of an appeal litigation, shall be an act of an administrative agency's public law, which is an act of establishing rights and obligations pursuant to the law, ordering obligations pursuant to the law, causing other legal effects, and shall be an act directly related to the rights and obligations of the people, and in itself, it shall not cause direct changes to the specific rights and obligations of the people, but shall not be subject to the general, abstract statutes or internal bylaws and internal business plans (see, e.g., Supreme Court Decision 94Du33, Sept. 10, 1994).

In addition, Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the "Development Restriction Zones Act"), its Enforcement Decree, and its Enforcement Rule, if there is no arrangement plan concerning the establishment of a liquefied petroleum gas charging station for motor vehicles in a development restriction zone, the permission-granting agency cannot return the application for permission for the business of filling liquefied petroleum gas for motor vehicles only on the ground that it has failed to establish such placement plan and itself, and it is reasonable to determine whether to grant permission individually and specifically considering the relevant Acts and subordinate statutes that present the guidelines for establishing the placement plan, comprehensively taking into account the provisions and purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2007Du12026, Mar. 26, 2009; 201Du9768, Oct. 13,

In light of the above legal principles, even if the Plaintiff issued a public notice to abolish the instant public notice, where the Plaintiff filed an application for permission for a liquefied petroleum gas filling business, the Defendant shall determine whether to grant individual and specific permission by comprehensively taking into account the provisions and purport of the relevant Acts and subordinate statutes that present the standards for formulating the placement plan. The abolition of the instant public notice does not affect the Plaintiff’s decision on the granting of permission for a liquefied petroleum gas filling business. Thus, the public notice to abolish the instant public notice itself does not directly cause a direct change to the specific rights and duties of the citizens, but rather is a general and abstract law, and thus, it cannot be deemed an administrative disposition subject to appeal litigation.

Therefore, the part seeking the revocation of the public notice to abolish the instant public notice among the instant lawsuit is unlawful.

3. Disposition by the Defendant’s act of returning the Plaintiff’s application for permission to charge liquefied petroleum gas.

Since the defendant returned the plaintiff's application for permission for the filling business of liquefied petroleum gas incidentally following the abolition of the notice of this case, the above return act cannot be deemed an administrative disposition subject to appeal litigation. However, even if the notice of this case is abolished, the defendant's decision on whether to grant permission for the filling business of liquefied petroleum gas should be based on a comprehensive consideration of the provisions and purport of the relevant Acts and subordinate statutes as to the plaintiff's application for permission for the filling business of liquefied petroleum gas, as seen above. It is difficult to view the above return act as a matter of course to be accompanied by the abolition of the notice of this case, and according to Article 12 of the Development Restriction Zone Act, the Enforcement Decree thereof, and the Enforcement Rule, the above return act has a legal right to apply for permission for development activities such as the permission for the filling business of liquefied petroleum gas. Thus, the above return act is a public

4. Whether the instant disposition is lawful

1) After the Defendant abolished the instant notice, the Defendant issued the instant disposition rejecting the Plaintiff’s application for permission for the filling business of liquefied petroleum gas on the ground that the Plaintiff cannot be given an opportunity to select a business entity due to the abolition of the instant notice, and that the permitting authority cannot return the Plaintiff’s application for permission for the filling business of liquefied petroleum gas on the sole ground of the abolition of the instant notice and the absence of the disposition plan. Therefore, the instant disposition that rejected the Plaintiff’s application for permission for the filling business of liquefied petroleum gas on the ground that

2) The Defendant asserts that the Plaintiff’s application for permission did not conform to the provisions and purport of the relevant statutes, such as the Development Restriction Zone Act, in light of the circumstance that the Defendant permitted the installation of liquefied petroleum gas charging stations in the energy site of Do, Do, neighboring the instant project site and the adjacent Do, Do, Do.

However, in an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or change other grounds only to the extent that the original and basic factual relations are recognized to be identical to those of the original disposition. The existence of the factual relations in this context are determined based on whether the basic social facts are identical in terms of the basic point of view by taking advantage of the specific facts prior to the legal evaluation of the grounds for disposition. The reason for construing that it is not allowed to claim as a grounds for disposition on the grounds of a separate fact not recognized as identical to the basic facts lies in ensuring the other party’s right of defense of the administrative disposition, thereby realizing the rule of law and protecting the other party’s trust in the administrative disposition (see, e.g., Supreme Court Decisions 2001Du8827, Dec. 11, 2003; 2007Du9365, Oct. 11, 2007).

In light of the above legal principles, it is reasonable to view that the reason for the abolition of the notice given by the Defendant as the reason for the disposition at the time of the disposition in this case and the above reason for the disposition additionally asserted by the Defendant in the lawsuit in this case is identical to the basic facts, and that the addition of the above reason for disposition is not allowed. Therefore, the above argument by

5. Conclusion

Thus, the part of the lawsuit of this case, which seeks the revocation of the public notice to abolish the public notice of this case, is dismissed as unlawful, and the remaining claims of the plaintiff are reasonable, and it is so decided as per Disposition.