[1] The purpose of the former Act on Promotion of Installation of Waste Disposal Facilities and Support, etc. to Adjacent Areas, and its Enforcement Decree, and the method and procedure of organizing the Location Selection Committee is unlawful, such as where the method and procedure of organizing the Location Selection Committee is conducted without the participation of the representative of residents or the experts by the recommendation of the representative of residents, whether the disposition of determining

[2] The case holding that where the location selection committee under the former Act on Promotion of Installation of Waste Disposal Facilities and Support, etc. to Adjacent Areas (hereinafter referred to as "the former Act") made a resolution arbitrarily without including the head of the Gun and the experts selected and recommended by the representative of residents in violation of the provisions of the Enforcement Decree of the same Act concerning the method and procedure for the formation thereof, the defects in the location determination of waste disposal facilities, which

[1] According to the provisions of Article 9(3) of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 7169 of Feb. 9, 2004), Article 7 [Attachment 1] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18514 of Aug. 10, 2004), and Article 11(2) of the same Act (amended by Presidential Decree No. 18514 of the same Act of the same Act of the same Act of the same Act of the same Act), the Location Selection Committee is a deliberative body that selects the location of waste disposal facilities, and the method of the Location Selection Committee aims to ensure the participation of residents in the process of the Location Selection Committee to prevent unfair infringement of residents' rights and ensure democratization and trust in administration by guaranteeing the participation of residents in the process of the Location Selection of Waste Disposal Facilities. Therefore, if the method or procedure of the Location Selection Committee is unlawful, such as a resolution without the participation of residents or experts from the representative of residents

[2] The case holding that where the Location Selection Committee under the former Act on Promotion of Installation of Waste Disposal Facilities and Support, etc. in Adjacent Areas arbitrarily constituted and resolved without including the experts selected and recommended by the head of the Gun and the representative of residents in violation of the provisions of the Enforcement Decree of the same Act concerning the method and procedure for the formation thereof, the defect in the location determination of waste disposal facilities, which was based on it, is significant and objectively obvious,

[1] Article 9 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7169 of Feb. 9, 2004); Article 7 [Attachment 1] and Article 11(2) of the Enforcement Decree of the Act on Promotion of Establishment of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Presidential Decree No. 18514 of Aug. 10, 2004) / [2] Article 7 [Attachment 1] of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Presidential Decree No. 18514 of Aug. 10, 2004

[1] Supreme Court Decision 2002Du394 Decided April 26, 2002, Supreme Court Decision 2003Du7118 Decided November 14, 2003, Supreme Court Decision 2003Du7118 Decided June 16, 2006, Supreme Court Decision 2005Du192 Decided June 16, 2006

Plaintiff and 31 others (Law Firm Chang, Attorneys Park Young-ok et al., Counsel for plaintiff-appellant)

Jeonnam-do Governor (Law Firm Law, Attorneys Noh Young-dae et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2006Nu667 decided Nov. 30, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Construction area and applicable Acts of waste disposal facilities of this case

Article 9 (1) of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7169, Feb. 9, 2004; hereinafter “Waste Disposal Promotion Act”) provides that the Minister of Environment or the head of a local government who intends to install and operate waste disposal facilities in excess of the scale prescribed by Presidential Decree (hereinafter “waste Disposal Facility Installation Agency”) shall determine and publicly announce the site selection plan. Paragraph (3) of the same Article provides that the agency in charge of installing waste disposal facilities shall without delay establish a site selection committee in which the representative of residents participates and select the site for the waste disposal facilities as prescribed by Presidential Decree. Article 6 of the Enforcement Decree of the Waste Disposal Promotion Act (amended by Presidential Decree No. 18514, Aug. 10, 2004) provides that “facilities prescribed by municipal ordinances of local governments” as one of the “waste disposal facilities above the scale prescribed by Presidential Decree,” and Article 9 (1) of the Enforcement Decree of the Act on Promotion of Installation of and Assistance, etc. to the Waste Disposal Facilities shall be deemed to include the final waste Disposal Facilities No. 3 square Ordinance No.

According to the records, the rural waste treatment facilities of this case (hereinafter referred to as the "treatment facilities of this case") are management-type landfill facilities, consisting of net reclamation site, water water treatment site, inner road, external road, incineration facility, and recycling line screening facilities. The site area of each facility is 24,720 meters of the net reclamation site, 1,950 meters of the water treatment site, 1,950 meters of the inner road, 4,330 meters of the square, 4,30 meters of the exterior road, 9,830 meters of the incineration facility, and 9,830 meters of the incineration facility and recycling line facilities. The above facilities other than the net reclamation site are also linked with the net reclamation site and are all included in the treatment facilities of this case, which are all managed-type landfill facilities. Accordingly, the development area of the treatment facilities of this case shall be deemed to be 42,810 meters of the total site area and the site area of each facility. Accordingly, the disposal facilities of this case shall be determined by the selection committee of the 3rd Ordinance of this case.

Although the reasoning of the judgment below on this part is somewhat insufficient, the conclusion that the development area of the disposal facility of this case is about 42,810 meters is proper, and there is no error of law such as misconception of facts due to violation of the rules of evidence as alleged in the grounds of appeal.

2. Whether the instant disposition is lawful

Article 7 (3) of the Enforcement Decree of the Waste Promotion Act provides that the head of a local government intends to establish a location selection committee shall not exceed 11 members in the case of a waste disposal facility which is intended to be established by the head of a local government, the number of members shall not exceed 11, and the criteria for appointment shall be two experts selected by two members of the Si/Gun/Gu Council, two public officials of the Si/Gun/Gu Council, three representatives of residents in the Si/Gun/Gu Council, two experts recommended by the head of a Si/Gun/Gu, and two experts recommended by the head of a Si/Gun/Gu. The experts shall be commissioned as higher than assistant professors of more than a junior college related to environment or as higher than the appointment researchers of a national/public research institute. Article 11 (2) of the Enforcement Decree of the Waste Promotion Act provides that the location selection committee shall pass a resolution with the consent of at least 2/3 of the incumbent members of the location selection committee. According to each of the above provisions, the location selection committee shall be deemed to be the method of selecting the location selection of waste disposal facilities, and to ensure residents' participation in an unlawful decision.

In full view of the admitted evidence, the court below held that, prior to the selection of the location of the disposal facility of this case, the head of the Gun, 210 residents within his jurisdiction, 25 members of the social organization, 16 members of the Gun Council, 13 members of the Gun Council, and 16 members of the Gun, and the experts recommended by the representative of residents, etc. were arbitrarily organized by the head of the Gun, and the above location selection committee was decided as the site for the disposal facility of this case. The above location selection committee decided that the Mancheon-gun, Hancheon-gun, the Mancheon-gun was the site for the disposal facility of this case, and the Mancheon-gun applied the above disposal of this case to the defendant in accordance with the legal principles as to the location of the disposal facility of this case, 28,650 meters of the site area of the disposal facility of this case, and the defendant did not have any unlawful determination in light of the legal principles as to the location of the disposal facility of this case and the recycling facility of this case.

3. Whether the defect in the disposition of this case constitutes grounds for invalidation

In order for an administrative disposition to be called a void as a matter of course, it is insufficient to say that there is an illegal cause. The defect is a serious violation of the important part of the law and objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be considered from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court Decision 2005Du14363, Jun. 30, 2006, etc.).

The court below determined that the defect of the disposition in this case is obvious objectively and objectively, since the purpose of the Enforcement Decree of the Waste Promotion Act is to ensure that two experts with professional knowledge are selected by the head of Si/Gun/Gu as well as two experts recommended by the representative of residents as to the method of organizing the Location Selection Committee and that the participation of two experts recommended by the representative of residents is to be more substantial than the participation of all residents by having them represent the interests and opinions of all residents by having them present the expected problems in advance, fairly and fairly through reviewing and presenting them in detail, and preventing unjust infringement on the rights of the residents due to the crossing of the local government or the rush decision of the representative of a small number of residents. In light of such purport, the participation of four experts in the Location Selection Committee, especially two experts recommended by the representative of residents, is an unnecessary element. Therefore, in this case, the court below determined that the defect of the disposition in this case constitutes grounds for invalidation.

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there are no errors in the misapprehension of legal principles as to the invalidation of administrative disposition, as otherwise alleged in the grounds of appeal.

On the other hand, Supreme Court Decision 2002Du394 Decided April 26, 2002 cited in the ground of appeal is different from this case, and it is not appropriate to invoke this case.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)