(영문) 대전지방법원 2012.11.28.선고 2011구합5461 판결

The defendant's disposition of permission for occupation and use of public waters against public-private partnership corporations on March 3, 2011 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiff is engaged in the power generation business with power generation facilities and ancillary facilities, including wharfs, located at 831 Yari-ri, Yari-ri, Yari-ri, Yari-ri, Yari-ri.

B. On December 16, 2010, the Intervenor’s Intervenor’s Intervenor’s non-permanent fishery partnership corporation (hereinafter “the Intervenor”) obtained permission from the Defendant for mountainous district conversion, and filed a report on the use of the same plant and plant management facilities at 11-2 of the same Ri on March 7, 2011 (hereinafter “instant aquaculture”). On March 29, 201, the Defendant rejected the Intervenor’s request on March 29, 201, for the purpose of establishing the Public Waters Act (hereinafter “Public Waters Act”) 10,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff has a large-scale power generation facility in the land adjacent to the public waters of this case and is running an electric power generation business. The Intervenor’s corporation, when occupying and using the public waters of this case in accordance with the disposition of this case, asserts the damage caused by dust, such as smoke and coal flowing into the public waters of this case and by power generation and drainage, etc., and raised a civil petition against the Plaintiff and filed a claim for damages (in fact, a civil petition is filed). Therefore, the Plaintiff became unable to properly engage in the electric power generation business without installing facilities to prevent any damage from a large scale of the damage caused by the public waters of this case. Accordingly, the Plaintiff constitutes “person entitled to the occupation and use of the public waters of this case” under Article 12 of the

3. Judgment on the Defendant’s main defense

A. The defendant's main defense

1) On July 14, 201, 201, the Plaintiff received an administrative appeal on which 90 days have elapsed from the date of the instant public notice, and was ruled dismissed on this ground. After a ruling on an illegal administrative appeal, the Plaintiff filed a lawsuit seeking revocation of the original disposition within 90 days from the date when the written ruling was served, and the lawsuit seeking revocation is not re-compliance with the period of filing the lawsuit. Thus, the instant lawsuit is unlawful as it exceeds the period of filing the lawsuit.

2) The Plaintiff is not the other party to the instant disposition, and there is a legal interest to seek the revocation of the instant disposition, but the damage claimed by the Plaintiff is merely abstract and factual, and thus, there is no standing to sue in the Plaintiff.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the period of filing a lawsuit and defenses

The term "date when the party becomes aware of the existence of a disposition, which is the starting point of starting the period for filing a lawsuit under Article 20 (1) of the Administrative Litigation Act" means the date when the party becomes aware of the existence of the relevant disposition. Since a third party, who is not the other party to an administrative disposition, is in a position in which it is not immediately known that the disposition has been taken, the period for filing a lawsuit shall not be deemed to have lapsed, unless there are any special reasons, even if 90 days have elapsed from the date of the disposition, unless there exist any circumstances such as when the third party knew, or could easily know, of the administrative disposition (see, e.g., Supreme Court Decision 200Du3641, May

Article 8(6) of the Public Waters Act provides that "the public waters management name shall be publicly announced as prescribed by Presidential Decree when an occupation or use permit has been granted to an unspecified number of people." Thus, whether the non-party to the disposition of this case can be seen as having been aware of the existence of the disposition of this case due to the entry into force of the public waters should be examined. ① The public waters management name under the above provision is widely notified to the interested parties for the benefit of the interested parties. Unlike the general cases where an administrative disposition is taken by a public notice against an unspecified number of people, it shall be deemed that all interested parties were aware of the disposition of this case on the effective date or the public notice date of the public waters." However, it is difficult to view that the public waters management name of this case was uniformly announced on the 9th day of this case, regardless of whether the interested parties were aware of the fact that the public waters management name was publicly announced or announced (see, e.g., Supreme Court Decision 9Du1257, Sept. 8, 200).

Therefore, on the premise that the Plaintiff was aware of the disposition of this case on the date of the public notice of this case, the Defendant’s defense on the part regarding the assertion that the lawsuit of this case is unlawful because the period for filing the lawsuit expires is unreasonable

2) Determination on the defense that there is no standing to sue

Even if a third party, who is not the direct counter-party to an administrative disposition, is not a party, he/she is entitled to obtain a decision of propriety by filing an administrative litigation seeking the revocation of the administrative disposition on July. The legally protected interest here refers to the individual, direct, and specific interest protected by the relevant laws and regulations and relevant laws and regulations (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006). It does not include either indirectly or factual or economic interests (see, e.g., Supreme Court Decision 2003Du11988, May 25, 2006).

However, Article 12 of the Public Waters Act provides that where the management agency of public waters grants an occupancy or use permit of public waters "a person who has a right likely to be damaged by such permit and determined by Presidential Decree", unless the holder of such right gives consent, permission shall not be granted unless the management agency of public waters provides that it constitutes "a person who has a right likely to be damaged by such permit and determined by Presidential Decree" as referred to in the above provision, if it can be viewed that the plaintiff constitutes "a person who has a right likely to be damaged by such permit

A) Therefore, Article 12 (1) 6 of the Enforcement Decree of the Public Waters Act provides that "the owner or possessor of adjoining land or artificial structures" as one of "the holder or possessor of the right prescribed by Presidential Decree". According to the result of the on-site inspection by this court, although the public waters in this case are at least 200 meters away from the site of the solar power plant operated by the plaintiff, the public waters in this case are included within the scope ( approximately 3-4 km) that may affect the power generation and drainage discharged from the solar power plant, the public waters in this case are included within the scope of "the owner or possessor of adjoining land or artificial structures" as referred to in the above provision.

B) Next, we examine whether the Plaintiff’s right as the owner or possessor of the Plaintiff’s land and artificial structure constitutes “the right expected to be damaged due to the instant permission” under Article 12 of the Public Waters Act.

Article 12(4) of the Enforcement Decree of the Public Waters Act provides that the determination of whether the right holder is likely to suffer damage pursuant to Article 12 of the Act shall be based on ① whether the right holder can use the public waters or adjoining land according to the purpose of his/her right (No. 1); ② whether the public waters or adjoining land can be properly used (No. 2) if the right holder does not take measures such as the installation of facilities preventing damage; ② whether the public waters or adjoining land can be appropriately used (no. 2). In addition to the purport of the whole oral argument as a result of the on-site verification of this Court, the following facts should be considered: (i) the residents engaged in fisheries, aquaculture, etc. in the vicinity of the thermal power plant have continuously raised adverse effects on the Plaintiff on noise, dust, accommodation, and electricity generation; (ii) whether the Plaintiff’s right to claim compensation for damages can be seen as the Plaintiff’s right to claim damages by attaching the Plaintiff’s consent to the Plaintiff’s permit to use the adjacent artificial structure, and (iii) the Plaintiff’s right to claim for damages.

(1) Article 12 of the Public Waters Act provides for the protection of a right holder in cases where a person who has already enjoyed rights, such as the right to occupy and use public waters, fishery rights, and ownership of neighboring land and artificial structures, is likely to suffer any damage which may not be exercised properly due to the permission to occupy and use public waters in question, and the term "damage" refers to the damage suffered by an existing right holder due to the permission to occupy and use public waters in question.

(A) The Plaintiff’s consent argues that the amount equivalent to the expenses incurred by the Plaintiff in preventing the damage constitutes “damage” as referred to in the above provision. Therefore, the term “facilities for preventing the damage” as referred to in Article 12(4)2 of the Enforcement Decree of the Public Waters Act refers to the facilities installed by the existing right holder (original height) in order to prevent the damage “to be caused” due to the occupancy or use permit of the public waters. As alleged by the Plaintiff, it is difficult to view that the existing right holder (the Plaintiff) is also included in the facilities installed in order to prevent the damage “to be caused” by the existing right holder (the intervenor) in accordance with the occupancy or use permit of the public waters.

(2) Although the Plaintiff had paid compensation for losses to the fishery rights, etc. in neighboring sea areas where damage was incurred due to the installation of the Pacific Power Plant, the public waters of this case are not included in the compensation for losses (the public waters of this case originally asserted that the public waters of this case were included in the sea areas where the Plaintiff paid compensation for losses, but no evidence exists to acknowledge it, and in preparatory documents of August 29, 2012, the Plaintiff stated that the compensation for losses was deemed to have been paid at the time of the construction of the Nauri Dam Construction Project, rather than the chemical power plant building project). It is difficult to view that the Plaintiff had any direct right to the public waters of this case.

(3) The Plaintiff asserted that the Intervenor could not operate a thermal power plant without taking preventive measures against the Plaintiff due to the Plaintiff’s civil petition or claim for damages against the Intervenor Union. However, in multiple cases where nearby fishermen claimed damage from power generation and drainage and claimed for damages against the Plaintiff, the fishermen’s claim was dismissed due to lack of proof as to the requirements. In the case of the Intervenor, the Intervenor started the aquaculture business subject to the instant disposition under the knowledge that the Plaintiff was operating a thermal power plant in the vicinity of the public waters of this case. In such a case, it is difficult to assess that the Intervenor would suffer any special loss to the extent that the Intervenor would be able to compensate for damages due to tort (see Supreme Court Decision 98Da1529, Nov. 23, 199). Thus, it is difficult to deem that the Intervenor’s claim is accepted, barring any special circumstances, even if the Intervenor’s claim for damages was filed against the Plaintiff on the grounds of the occurrence of damage caused by power generation and drainage, etc.

(4) In addition, the intervenor corporation is claiming the damage caused by the coal dust flowing into the present cultivation site, and did not claim the damage caused by the power generation and drainage flowing into the public waters of this case. It is difficult to recognize that the plaintiff has to take preventive measures in relation to the disposition of this case, which is the occupancy and use permit of the public waters of this case (Article 4 of the public waters of this case, reference materials submitted by the plaintiff at the time of on-site inspection, and 4-A-B, the intervenor corporation is raising a civil petition against the plaintiff related to the instant cultivation site, and there is no fact that the intervenor filed a civil petition related to the public waters of this case).

C) Ultimately, with respect to the defendant's disposition of this case against the intervenor corporation, the plaintiff does not constitute "a person who holds a right expected to be injured due to the permission to occupy and use public waters under Article 12 of the Public Waters Act" or "right to use and use public waters." Thus, it is reasonable to view that the plaintiff's "damage equivalent to the cost incurred by installing prevention facilities due to the plaintiff's civil petition or claim for damages" is difficult to reasonably recognize the possibility of occurrence, or it is nothing more than a violation of indirect or factual, or economic benefits in accordance with the disposition of this case. There is no other evidence to acknowledge that the plaintiff has legal interest to seek cancellation of the disposition of this case. Accordingly, the plaintiff's lawsuit of this case is unlawful because the plaintiff has filed a lawsuit of this case against the plaintiff without standing to sue, and the defendant's defense of this point is

4. Conclusion

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench.

Judges

The presiding judge, the Giman Judge

Judges Kang Jin-hee

Judges Jeon Jae-il

Note tin

1) If interpreted as alleged by the Plaintiff, “damage” under Article 12 of the Public Waters Act and Article 12 of the Enforcement Decree of the Public Waters Act

The term "damage prevention facilities" referred to in paragraph 4 (2) means any difference in the "damage prevention facilities" at all, which means such difference.

An interpretation is difficult to adopt the same meaning as used in the relevant provision because it is interpreted differently.