(영문) 수원지방법원 2010.7.1.선고 2009구합13529 판결

1. The disposition that the defendant returned to the plaintiff on October 5, 2009 the application for use of agricultural water for purposes other than the purpose of use shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of disposition;

A. The plaintiff is a company that aims at the construction implementation business and intends to build "C", which is a golf course in Ansan-si B (hereinafter "the golf course in this case").

B. The Defendant is a public corporation established based on the Korea Rural Community Corporation and Farmland Management Fund Act (hereinafter referred to as the “Agricultural and Fishing Villages Corporation Act”), which is a manager of E reservoir located in Ansan City as a public corporation conducting projects for the maintenance, management, and utilization of agricultural infrastructure and projects for the development, utilization, preservation, and management of rural water and underground water resources. On June 10, 2009, the Plaintiff filed an application for approval of use of E reservoir’s water for purposes other than agricultural purposes (hereinafter referred to as “instant application”).

D. On October 5, 2009, the defendant sent a reply to the plaintiff on October 5, 2009 that the application for approval shall be returned to the plaintiff on the ground that "not only the neighboring residents but also farmers' civil petition filing in the beneficiary zone and the status of the construction caused by the proposal of the problems of the local press" (hereinafter referred to as the "disposition in this case"). [the ground for recognition] There is no dispute, each entry in Gap's evidence Nos. 1, 4, 6, 7, and 8 (including each number), and the purport of the whole pleadings.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) The Defendant’s rejection of the instant application did not meet the requirements as cancellation or withdrawal of the beneficial administrative act, even though the approval for use of the instant application for purposes other than the purpose of agricultural water was already deemed to have been granted authorization for modification of the implementation plan pursuant to Article 92(1)7 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”).

2) The question raising of civil petition and local press can not be a legitimate ground for rejection, and it cannot be added or modified due to the disposition of surplus water shortage.

3) Since the Defendant’s employee already expressed that it is possible to use the agricultural water for purposes other than the purpose of this case, the instant disposition contrary to the preceding act is contrary to the principle of trust protection.

4) The instant disposition is based on misunderstanding of facts, and the protected public interest is almost little, while it is in violation of the principle of proportionality as it infringes on the private interest.

B. Relevant statutes

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

1) General status of E reservoir

A) The reservoir E is an agricultural reservoir completed in 1963 for the purpose of agricultural use on the farmland of approximately 2,968.8ha of the F in Ansan-si, the total storage quantity of which is 16,105,00 tons, and the total storage area of which is 229.9 square meters.

B) The average storage amount of the reservoir E from January 200 to March 2009 maintained 99.3% of the non-water supply season. However, the average storage amount of the reservoir E was reduced to 26.6% in the police officer in June 2, 200, and 25.2% in the police officer in June 2, 200.

2) The plaintiff's application of this case

A) The Plaintiff, in relation to the construction of the instant golf course in the environmental conservation review document prepared around February 2009, is a plan to use the E reservoir’s water for the improvement of the environmental impact of “the irrigation water in the project zone”, “the irrigation water in the project zone shall be used preferentially by recycling the whole water of excellent water and sewage treatment water flowing into the water connected with the environment, and for the shortage in the Han city, etc. The initial irrigation water is to recycle the whole water of the environmental use, smoke, and to use the safe drinking water for the shortage in water supply. However, the existing supply plan for the Ansan City's water supply of the project zone and its surrounding village changed from the KAG to the Chungcheong Dam, thereby causing a shortage in the use of the project zone and its neighboring village, and the cost of water supply increases from approximately 40 million to about 2.5 billion won. Accordingly, the water supply plan was presented to limit the water supply of the project zone and its neighboring village, and to supply the irrigation water and its surrounding area using the E-water reservoir.

B) The date of application of this case is June 10, 2009.

C) According to the Plaintiff’s application of this case, the fact that the E reservoir water is used for the supply of raw water for the remaining water of the instant golf course in construction for three years each year, and the volume of earth and sand with a capacity equivalent to 70,000 tons of the scheduled quantity for application for permission for use for any purpose other than the purpose is planned to secure a surplus quantity by dredging at the bottom of the E reservoir.

3) The defendant approval procedure

A) Article 5 of the Defendant’s “Guidelines for the Management of Affairs Using Agricultural Infrastructure or Water for Other Purposes (No. 8th May 14, 2008)” provides for matters to be considered when approving the application for use, such as whether the supply of agricultural water interferes with the surplus quantity analysis, the cross-section size, the flow of water quality, environmental pollution, and the National Land Planning Act.

B) With regard to approval for use of agricultural water for the purpose other than the purpose of this case, the procedures for applying for approval to the head of the defendant Gyeonggi-do headquarters shall be prior to the procedures for examining the application details of the application for approval by the defendant Ansan branch, and the matters to be examined as follows.

A person shall be appointed.

4) On July 9, 2009, in relation to the construction of the instant golf course, the Ministry of Information and Communication announced the modification of the urban management plan (detailed facilities) under Article 30 of the National Land Planning and Utilization Act and Article 25(3) of the Enforcement Decree of the same Act, and the modification of the implementation plan under Article 88(3) of the same Act and Article 97 of the Enforcement Decree of the same Act.

5) Details of the review of the instant application by the Defendant’s Ansan branch office

A) According to the E-reser reservoir utilization plan of August 21, 2009 by the Defendant Ansan branch, the following problems are as follows: (4) expansion of farmers’ apprehensions about shortage of agricultural water in the event of a Han Sea; (8) concerns about residents’ complaints and complaints about the supply of water for golf courses; (5) history against golf courses in the event of multiple non-approval; (4) suspension of water supply if the E-reser reservoir amount falls below 40%; (70 million won; (87), installation of excellent recycling storage facilities (with respect to disaster storage expenses and separate facilities); (8) installation of public relations facilities and public relations facilities at the time of cooperation with residents; and (8) improvement measures (excluding supplementary measures) expansion of water supply when the E-reser reservoir amount falls below 40%; (7) suspension of water supply when the water storage amount falls below 10,000 meters; and (7) installation of excellent recycling storage facilities at the time of a golf course; (87), installation of public relations facilities at the time of cooperation with residents.

B) According to the E-reser reservoir utilization plan dated September 11, 2009 by Defendant Ansan branch office, the following problems are as follows: (4) expansion of farmers' apprehensions about shortage in agricultural water at the time of the occurrence of Han Sea, farmers' complaints about the supply of water at golf courses, and farmers' complaints about golf courses at the time of non-approval, and farmers' complaints about the supply of water at golf courses at the time of multi-approval, and (5) measures (Supplementary measures) decrease below 40% of the water storage amount at the time of water supply suspension (short-term measures), dredging (amount: 70,00 meters at their own expense) in order to secure additional water supply, 87,600 meters within the golf course, and 87,600 meters within the golf course (out-term storage facilities and separate facilities) disposal facilities of this case, which were filed by the Defendant's agent, to the extent that the Plaintiff's application for the use of water within the area of the instant golf course was seriously damaged to the extent of its use.

7) According to the news report of the media on October 4, 2009, the day before the disposition of the instant case, G Internet articles, “Korea History (President H) would not provide agricultural water to the golf course.” Not only would the new contract be denied, but also the existing contract be renewed after the maturity. Accordingly, it is also impossible to conclude a contract for the supply of water to the golf course in I promoted by the Korea Rural Community Corporation, which has been promoted by the Korea Rural Community Corporation within the Korea Rural Community Corporation. There was a place where water can be supplied to the golf course in Daranam-do, and farmers have been extremely against them. In this case, the term of 10 years has been decided not to supply agricultural water to the golf course. However, the term of 10 years has been changed to 20 years before the conclusion of the contract for the golf course, which was concluded with the Korea Rural Community Corporation. It also appears that the term of 10 years has not yet been changed to 3 years after the conclusion of the contract for agricultural water supply to the golf course.

8) Case

On December 30, 2008, an application for approval of the head of the defendant Ansan branch and a contract for use of the golf course for three years each year with 100,000 meters each year after obtaining approval from the head of the defendant Gyeonggi-do headquarters was concluded, and the special agreement was concluded that the supply of water may be suspended if it is determined that there is an obstacle to the supply and maintenance of agricultural water (e.g., when water reaches a low quantity of less than 40%) due to drought, other inevitable reasons, etc.

[Ground of recognition] The aforementioned evidence, Gap evidence Nos. 5, 9, 10, Eul evidence Nos. 1 through 8 (including each number), the purport of the whole pleadings

D. Determination

1) As to the issue of recognition

The plaintiff asserts that the change of the implementation plan of Ansan-si on July 9, 2009 is based on the premise that the plaintiff uses the water of the reservoir E, so the plaintiff has already become an agenda of approval under Article 92 of the National Land Planning Act.

According to Article 92 of the National Land Planning and Utilization Act, where an agricultural infrastructure manager is the Korea Rural Community Corporation, approval for the user's application is not deemed granted, and where approval is deemed granted, a person who intends to be deemed granted authorization, permission, etc. shall submit related documents when applying for authorization of an implementation plan.

The Plaintiff did not submit an application for approval of use of the E reservoir for the purpose other than the rearrangement of agro-fishery villages when the Plaintiff applied for approval of change of implementation plan in Ansan-si, and the fact that the manager of E reservoir, which is the agricultural infrastructure of this case, is the Defendant Rural Community Corporation, does not conflict between the parties. Therefore, it cannot be deemed that the Plaintiff deemed that approval of use for agricultural

Therefore, only when it is based on the premise that approval for use of agricultural water for purposes other than agricultural water was deemed to have been deemed to have been granted to the plaintiff, the disposition in this case can only be subject to cancellation and withdrawal of the beneficial administrative act called approval for use other than agricultural water. The plaintiff's above assertion on the premise that approval for use other than agricultural water is not deemed to have been granted to the plaintiff, is without merit.

2) In general in administrative legal relations with regard to whether or not the principle of protection of trust is violated, in order to apply the principle of protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual, second, the administrative agency's trust in the statement of opinion should not be attributable to the individual. Third, the individual should have committed any act against the above statement of opinion. Fourth, by the administrative agency's disposition contrary to the above statement of opinion, the individual's trust in the statement of opinion should be infringed. Lastly, if an administrative disposition is taken pursuant to the above statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decisions 200Du8684, Sept. 28, 200; 205Du6539, Apr. 28, 2006).

Even if there was an internal review in the defendant Ansan branch before applying for approval of use for a purpose other than the purpose, this is merely an act of preparation for the application for approval of use for a purpose other than the purpose, and there is no proof that there was a public opinion suggesting that the defendant's representative or a public official in charge should approve the application of this case to the plaintiff (it cannot be deemed that the statement of evidence No. 12 alone did not constitute the above opinion statement). The plaintiff's above assertion does not have any reason to further examine the remainder of the issue.

3) As to the ground for disposition of this case

A) Whether the grounds stated in the instant disposition form are legitimate

Administrative agencies shall clearly explain the root and reasons that conform to the relevant laws and regulations to the parties while taking administrative dispositions. However, the reason of the disposition in this case is not only abstract, but also merely abstract, the reason of the disposition in this case is merely a civil petition filing, press problem filing, and damage to the construction work without specific grounds and reasons that conform to the relevant laws and regulations. The reason itself cannot be a legitimate standard in determining whether to approve the use of the purpose of this case (see, e.g., Supreme Court Decisions 97Nu6261, Jul. 23, 199; 2002Du9762, Jul. 26, 206). Thus, it is unlawful for the reason of administrative disposition (see, e.g., Supreme Court Decisions 200Du9762, Jul. 23, 1999; 200Du9762, Jul. 26, 206).

B) Whether the administrative litigation of the instant case can add the grounds for disposition

Although the defendant asserts in the administrative litigation of this case that "the degree of surplus water for agricultural use is insufficient to supply to farmers in the mutually beneficial zone", it cannot be deemed that the basic facts between the above disposition grounds and the reasons stated in the disposition of this case are the same, and it cannot be permitted to assert that the individual disposition grounds that cannot be anticipated as a citizen of the other party to the disposition were included in the abstract disposition in the administrative litigation of this case, since the above disposition grounds are not allowed in the administrative litigation of this case (see, e.g., Supreme Court Decisions 88Nu1926, Jul. 25, 1989; 96Du13286, Apr. 24, 1998; 2004Du4482, Apr. 11, 2004; 2006Du4899, Feb. 8, 2007).

C) Sub-decision

Therefore, the disposition of this case is unlawful as it is unlawful.

D) Cause and method of resolving the instant dispute

Comprehensively taking account of the facts revealed in the above facts, the dispute of this case is likely to have occurred due to the result of the disposition of this case in the state of non-official defendant's policy suspending an examination in accordance with the defendant's standards, and without examining whether the supply of agricultural water to golf courses complies with the standards, although the defendant's safe branch office examined the contents of the plaintiff's application of this case and did not present specific grounds for the relevant laws and regulations and determination.

Therefore, the defendant has a variety of discretion to realize standards for using water for purposes other than the purpose and to approve the use for purposes other than the purpose based on statistics on the monthly water storage volume, annual water storage volume, and the frequency of outbreak. Thus, as abstract, it should be examined according to the procedure, including whether the plaintiff's application in this case satisfies the criteria for approval of use for purposes other than the defendant, and if there are justifiable grounds to deem it inappropriate at all times, it shall be implemented in accordance with the review criteria, including whether there is a concern that the number of water used for the purpose other than the purpose is insufficient to supply to farmers within the beneficiary area at the annual or monthly unit instead of the grounds for disposition without the legal basis.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.