(영문) 대전고등법원 2006.3.9.선고 2006누123 판결

The Defendant’s revocation of the disposition rejecting an application for registration for petroleum retail business (gas station) against the Plaintiff on February 2, 2004.

2. Purport of appeal

The order is as set forth in the text.

Reasons

1. Details of the disposition;

The defendant is called the Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the "Special Measures Act").

Article 11(1)1 of the Enforcement Decree of the same Act, Article 13(1) [Attachment 1] subparagraph 5 (m) of the Enforcement Decree of the same Act, and Article 4(2) of the Enforcement Rule of the same Act (hereinafter referred to as the "Enforcement Rule of the Special Act"). On October 6, 2003, in relation to the development-restricted zone of the Daejeon Sung-gu Incheon Metropolitan City, Daejeon, under Article 2003- - 88 of the Notice of the Monopo District of Daejeon, the "Plan for the placement of gas stations and liquefied petroleum gas filling stations within the development-restricted zone" (hereinafter referred to as the "Notification of this case") was amended and published, and on November 6, 2003, the criteria for the selection of persons to be installed under the Notification of this case was publicly announced.

On December 29, 2003, the Plaintiff filed an application for registration of petroleum retail business (gas station) with the location of the principal place of business of Daejeon Sung-dong, Daejeon-dong, Daejeon-dong, 204-1,678m (hereinafter referred to as the “instant application site”) located within a development-restricted zone, pursuant to the instant public notice and the criteria for the selection of persons eligible for the said installation.

According to Article 4 of the Enforcement Rule of the Special Act on February 2, 2004, the defendant issued a disposition to return the above application for registration (hereinafter referred to as the "disposition of this case") on the ground that the interval between gas stations should not be less than 2 km for each same direction of the road in question. The application of this case was made on the ground that it was located 1,923.06 meters away from the boundary of the oil station in Daejeon Pungdong-dong 102 - 1,923.

[Grounds for recognition] Gap evidence 2, 3, Gap evidence 5, 6, Eul evidence 1 and 2, and the purport of the whole pleadings

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds. (1) Since the instant application is located around the amnesle-distance, not in straight line, and is located around the amnese-distance, it is necessary to examine whether the instant application and the shortest distance are in violation of Article 4 of the Enforcement Rule of the Special Assistance Act on the Roads in every direction. Even if the shortest distance is only 1,923 06 meters in the case of a right-hand or right-hand turn-hand turn-hand turn-hand turn-on in the amsle-dong and the amsle-dong and the amsle-dong and the amsle-dong, the application and the shortest distance are only 1,92

(2) ① The distance between the outer boundary line of the instant application is 2,039.05m from the outer boundary line of the instant application to the outer boundary line of the Cr. There is no ground to view that the distance between gas stations ought to be measured on the basis of the shortest distance. ② Even if the distance is measured on the basis of the shortest distance, it is insufficient to say that the distance is at least the nearest difference between 1,923 and 2 km. In light of the purport of the Act on the Special Cases concerning Compensation for Residents who have been restricted from exercising their property rights due to the designation of the restricted area, this is in light of the purport of the aforementioned Act.

The rejection of the application for registration of this case due to minor lack of distance is a deviation and abuse of discretion.

(b) Related statutes;

As shown in the attached Form.

C. The facts of recognition (1) on February 4, 1994, the Defendant announced a plan for the placement of gas stations within the Daejeon Seodong-gu Incheon Metropolitan City Seodong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si. According to the above placement plan, three gas stations were allowed to be installed within the Si-Gun-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong.

(2) The filing of the instant application is located on the roadside of the Metropolitan City leading to the direction of the Daejeon Pungdong-dong from the Daejeon Pungdong-dong, and is located on the roads of the Metropolitan City leading to the direction of the Daejeon Pungdong-dong-dong-dong, and is located on the roads as the shortest distance of 1,000 meters from the Daegu Pungdong-dong-dong-dong-gu,

[Ground of recognition] Class 5, 6, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

D. Determination

Article 11(1)1 of the Act on Special Cases, Article 13(1)5 (m) of the Enforcement Decree of the Act on Special Cases, Article 13(1)5 (m) of the Enforcement Decree of the Act on Special Cases, and Article 4 subparag. 2 of the Enforcement Rule of the Act on Special Assistance shall be prohibited in principle from constructing buildings within development-restricted areas. However, a gas station which is one of the facilities jointly used by residents may be exceptionally constructed with permission from the head of the Si/Gun/Gu in accordance with the plan for placement of gas stations established in advance. The notice of this case based on the above provision provides that one gas station shall be added to the direction of the Si/Gun/Gu, and the interval between gas stations shall be not less than 2 km for the same direction. The notice of this case provides that if the provisions of the Enforcement Decree of the Act on Special Assistance and Special Assistance grants the head of the Si/Gun/Gu the authority to determine specific matters of the content and without specifying the procedure or method for exercising such authority, it shall be combined with the special provisions of this case and the Act.

However, deeming “not less than 2 km for each same direction” as “the shortest distance between gas stations conforms to the purport of the relevant provision. The instant application is reasonable for the instant disposition that rejected the application for registration of the instant petroleum selling business (hereinafter referred to as “gas station”) on the ground that the distance between gas stations located in the same direction as that between the gas stations located in the city of a gold path falls short of 2 km between the gas stations prescribed in the instant notice. As such, the instant disposition that rejected the application for registration of the instant petroleum selling business on the ground of the same reason is lawful. As such, the instant disposition pursuant to the instant notice cannot be seen as deviating from and abusing discretionary power on the ground that the distance between gas stations is too small, as alleged by the Plaintiff.

3. Conclusion

The plaintiff's claim of this case is without merit. Since the judgment of the court of first instance differs from this conclusion, the plaintiff's claim is revoked and dismissed. It is so decided as per Disposition.