2019Guhap77026 Nullification, etc.

1. A;

2. B

3. C

4. D;

5. E.

6. F;

7 G

8. H;

9. I

10. J

Plaintiffs et al., Counsel for the defendant-appellant

Attorney Seo Jong-hun, Counsel for the plaintiff-appellant

The Minister of Trade, Industry

Korea Electric Power Corporation

Attorney Lee Jae-tae, Counsel for the plaintiff-appellant

May 7, 2020

June 11, 2020

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the Plaintiffs.

On June 13, 2017, the defendant confirmed on June 13, 2017 that the approval of the project implementation plan (L construction implementation plan) with respect to the defendant's supplementary intervenor is invalid.

1. Details of the disposition;

A. On June 2016, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) established an implementation plan for L construction projects (hereinafter referred to as “instant project”) which install transformation stations, power transmission lines (4,283 km), support materials (the “electric transmission towers”) at the Seo-gu, Seoan-gu, Seoan-gu, Seocheon-si, Seocheon-gu, Incheon (hereinafter referred to as “Seoul”), and applied for approval of the implementation plan for electric power resource development projects (hereinafter referred to as “instant implementation plan”) to the Defendant around June 2016 pursuant to Article 5(1) of the Electric Power Source Development Promotion Act.

B. On June 13, 2017, the Defendant approved the instant project implementation plan as applied by the Intervenor, and on the same day, publicly notified it as Qua (area: 73,848 square meters (area: 5,964 meters, steel tower site: 1,744 meters, ship site: 66,140 square meters) and hereinafter “the instant disposition”).

C. The Intervenor filed an application with the Central Land Expropriation Committee for adjudication on the expropriation of land, etc. incorporated into the instant project, and the Central Land Expropriation Committee rendered a ruling on November 8, 2018 that allows the Intervenor to expropriate and use the said land from January 2, 2019.

D. The Plaintiffs are residents living in the vicinity of transmission lines and steel towers to be installed pursuant to the instant project.

[Reasons for Recognition 1] Unsatisfy, Gap evidence 4, Eul evidence 5, and the whole pleadings

2. Whether the instant disposition is lawful or not, as shown in the attached Form, such as relevant statutes.

B. Summary of the plaintiffs' assertion

The instant disposition is null and void due to serious and apparent defects as follows.

A. Since the instant project is a content that installs a transformation station and transmission tower through which the community residents actually reside with the flow of high voltages through the area where the community residents actually reside, the opportunity to present their opinions should have been provided to the residents. However, at a public hearing held by a participant, only about 15 residents were present at the public hearing held by the participant, and the presentation session is also formally and formally progress, the approval procedure of the instant implementation plan should be deemed to be a case where the hearing of opinions under Article 5-2 of the Electric Source Development Promotion Act was not followed

B. During the process of selecting the location of the instant project, the Intervenor organized a Location Selection Advisory Committee. The representative of residents did not include the representative of an environment organization or civic group, a professor of neutrality, etc., and a meeting for Location Selection was held unlawfully, and the opinions of relevant residents were not properly reflected.

C. In order to obtain the approval of the instant implementation plan, the Intervenor submitted a “R construction project joint consent signature book” to the Defendant, as the written consent of the residents residing in the Kacheon-si in the project area, which is the project area. The above written consent is likely to be a forged document with the seal of the residents affixed to the copy of the village without permission.

C. Whether the instant disposition is lawful

1) Relevant legal principles

In order for an administrative disposition to be a void as a matter of course, it is insufficient to say that there is an illegality in the disposition. The defect is a serious violation of the important part of the law, and it must be objectively clear. The purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see Supreme Court Decision 96Da7451, Jan. 26, 1996).

2) Whether hearing procedures are unlawful since they were formally conducted

(A) Article 5-2(1) of the Electric Power Source Development Promotion Act provides that where an electric power resource developer wishes to obtain approval of an implementation plan or approval of alteration, he/she shall hear opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of an implementation plan through inspection of the implementation plan or briefing sessions, except for the exceptions prescribed in subparagraphs 1 through 4, before applying for approval of an implementation plan or approval of alteration. Article 5-2(2) of the same Act provides that an electric power resource developer shall reflect such opinions in an implementation plan if deemed reasonable. Paragraph (3) of the same Article provides that matters necessary for the methods and procedures for hearing opinions of residents, etc. under paragraph (1) shall be prescribed by Presidential Decree. Article 18(1) through (3) of the Enforcement Decree of the Electric Power Source Development Promotion Act provides for the purpose of the electric power resource development project, implementer, outline of electric power resource development project, location and area of electric power resource development project area, period for implementation (Article 5(2)1 through 5) of the same Act shall be held within 10 days.

(B) The following facts can be acknowledged in light of the overall purport of the arguments in the video of the evidence Nos. 4, 5, 8, and 7 in Eul-B.

(1) On April 2, 2015, the Intervenor explained the plan for the business of transformation stations and transmission lines to the 54 Ribs (e.g. and about 60 residents) in T Offices located in Seo-gu, Seo-gu, Seoan-si.

② On April 9, 2015, the Intervenor: (a) invited the major personnel and residents of the U Center located in Seo-gu, Seo-gu, Seo-gu; and (b) explained the construction plan, such as a transformation station; (c) approximately 30 residents present.

③ From August 24, 2015 to September 3, 2015, the Intervenor proceeded with a resident presentation session at M, N,O, K, and other community halls.

④ From November 17, 2015 to December 4, 2015, the astronomicalan City publicly announced the perusal and presentation of the instant implementation plan. The said announcement was written in the summary of electric source facilities, the location and size of the electric source development business area, and the execution period, and the resident presentation was held in the Seocho-gu Incheon Metropolitan Government Office on November 24, 2015, and the instant implementation plan can be perused by the office of the Seo-gu office of the Seo-gu Incheon Metropolitan Government Office (Industrial Economy and Regional Economic Team) and the office of the conflict management division of the Jung-gu Construction Agency. On November 17, 2015, V press and the W Press published the said announcement via newspapers.

On September 10, 2018, the intervenor entered into an agreement with X schools on the win-win generation (MOU) and installed a real-time electromagnetic wave measurement device that instructs the domestic standard values of electromagnetic waves and the present measurement values in X-K.

6. On November 24, 2015, an explanatory meeting for the residents regarding the project in this case was held by the Seo-gu Office of the Seo-gu Incheon Metropolitan Government.

(C) The electric power resource development business shall proceed with the purpose of ensuring the stability of the supply and demand of electricity in Korea and contributing to the development of the national economy (Article 1 of the Electric Power Source Development Promotion Act). On the other hand, there is a risk of affecting the safety of neighboring residents’ lives and bodies. In granting approval of the electric power resource development business, a series of provisions that provide procedures for hearing opinions from residents, etc. have the meaning of participation in procedures provided to the parties who are at a disadvantage or are likely to be at a disadvantage with respect to the infringement of people’s lives and bodies, and are interpreted as an institutional device to prevent arbitrary progress of the electric power resource developer and to ensure the objectivity and fairness of the business. In relation to determining whether the pertinent provision has been violated, it is desirable to gather sufficient opinions from interested parties, including the Defendant, in advance, including the local residents, in determining whether the approval of the implementation plan of the electric power resource development business that affects the safety of the people’s lives and bodies, and on the other hand, it is clear that the State should have broad freedom to create such defect (see Constitutional Court en banc Decision 2010, 2751.

(D) According to the above facts, it is difficult to view that the Intervenor’s application for the approval of the instant implementation plan was publicly announced within 10 days after June 2016 or that an explanatory meeting was held to hear the opinions of the residents, etc. during the inspection period. However, the Intervenor held an explanatory meeting with respect to the instant implementation plan, and specifically announced the project implementation plan and made it available to the residents, etc. for perusal during the period prescribed by law. Thus, it is reasonable to deem that the Intervenor had completed the procedure corresponding to the inspection of the implementation plan, the holding of an explanatory meeting, and the hearing procedure corresponding to the procedures for hearing the opinions of residents, etc. under Articles 5-2(1) and (2) of the Enforcement Decree of the Electric Power Development Promotion Act, and Articles 18(1) through (3), 18-4(1) and (3) of the same Enforcement Decree of the same Act, even if there were significant defects in the procedure, namely, the opportunity to participate in the procedure, and the objective of hearing the opinions of residents, etc., within 10 days.

(d) Whether the organization of the Location Selection Advisory Committee is unlawful;

(1) As seen earlier, electric source development projects are carried out according to the need for electric source development, taking into account whether they conform to the demand and supply conditions of the entire Republic of Korea or long-term energy policies. Accordingly, in order to comprehensively review the pertinent matters, the Electric Source Development Promotion Act uniformly stipulates that the Defendant, the competent authority, approve the electric source development project (Article 5(1)). In other words, since the installation of electric source facilities is based on the detailed plan for electric source development projects approved by the Defendant in accordance with the power supply and demand plan of Korea, it is a kind of administrative plan that is carried out based on the professional and technical judgment. Accordingly, a relatively broad freedom of formation is granted to administrative body regarding the drafting and decision of a specific administrative plan. However, it is subject to restrictions that the interests of the persons related to the administrative plan should be fairly compared not only between public and private interests, but also between public and private interests (see Supreme Court Decision 96Nu8567, Nov. 29, 196). Meanwhile, the purpose of the administrative plan decision is legitimate within the scope of balancing and discretion.

(2) The “Site Selection Advisory Committee” refers to the above conference which seeks advice in the selection of location by commissioning the representative of local residents, the local government-recommended members, experts in each field, etc. to exercise reasonable and objective administrative plan decision within the scope of planning discretion in the selection of the location of electric power resource development business. The Location Selection Advisory Committee is organized and operated pursuant to the internal regulations of an intervenor, not law, and is not bound by the intervenor unless there are any external binding force, and there are no special circumstances. The organization of the above committee is limited to the absence of grounds to deem that the representative of residents, representatives of environmental organizations or civic groups, etc., as alleged by the plaintiffs, or separate procedures to reflect the opinions of the relevant residents are necessary, or that such organization of the committee deviates from and abused the purpose of the site Selection Advisory Committee in the determination of the location of electric power resource development business. Furthermore, in full view of the purport of arguments written in Eul or 3, it cannot be deemed that there are no significant errors in the composition of the committee or the committee members commissioned by the head of the Dong, the representative of the environmental organization, and the press, etc.

(e) the existence of defects under the provisions of this Agreement;

The relevant laws and regulations do not require a list of written consents to the application for approval of the instant implementation plan. In full view of the purport of the entire pleadings in the statement in the statement in the statement in the statement in the statement in the evidence No. B, the intervenor conducted a special support program for village residents residing within a certain scope from the transmission line for the smooth progress of the instant project, and recognized the fact that the intervenor obtained consent from the relevant residents for the implementation of the project. However, this appears to have been carried out in accordance with the separate internal regulations of the intervenor for the purpose of preserving the 'psychological and psychological aspect in relation to the implementation of the instant project and facilitating the implementation of the project under the cooperation of the residents.' assertion by the plaintiffs alone does not affect the legality of the instant disposition. This part of the plaintiffs' assertion cannot be accepted without further review.

F. Sub-committee

It is not recognized that there is a serious or objective reason for illegality in the disposition of this case. The disposition of this case cannot be deemed as null and void as a matter of course.

3. Conclusion

Since the plaintiffs' claims are without merit, all of them are dismissed. It is so decided as per Disposition.

Awards and decorations by the presiding judge;

Judges Lee Jae-ho

Judges Kim Jae-jin

Relevant statutes

【Electric Power Source Development Promotion Act

Article 5 (Authorization of Execution Plan for Electric Power Source Development Business)

(1) An electric source developer shall establish an execution plan for electric source development business (hereinafter referred to as "implementation plan") and trade in industry.

He/she shall obtain approval from the Minister of Home Affairs: Provided, That the electric source development business prescribed by Presidential Decree shall be conducted.

this shall not apply.

Article 5-2 (Hearing Opinions of Residents)

(1) An electric source developer who intends to obtain approval of an execution plan or approval for modification pursuant to Article 5 shall obtain approval.

Before applying for approval of change, the execution of the project subject to the project through inspection and presentation of the project implementation plan.

The opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the Act;

If residents, etc. within the extent prescribed by Presidential Decree request to hold a public hearing, a public hearing shall be held.

shall be held: Provided, That the foregoing shall not apply to the following cases:

1. Where the opinions of residents, etc. have already been collected pursuant to other statutes;

2. Where it is necessary to maintain confidentiality for national defense;

(2) An electric power resource developer shall present opinions of residents, etc. heard pursuant to paragraph (1), if deemed reasonable.

The implementation plan shall be reflected.

(3) Matters necessary for the methods and procedures for hearing opinions of residents, etc. under paragraph (1) shall be prescribed by Presidential Decree.

(c)

【Enforcement Decree of the Electric Power Development Promotion

Article 18 (Public Notice, Inspection, etc. of Project Implementation Plans)

(1) Electric resource developer shall be residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") pursuant to Article 5-2 of the Act.

When hearing opinions, a project implementation plan under paragraph (1) of the same Article (hereinafter referred to as "project implementation plan") shall be held.

shall be prepared and submitted to the head of the following administrative agencies:

1. The head of the Si having jurisdiction over the electric source development business zone ( Jeju Special Self-Governing Province and free international city);

The head of a Si/Gun/Gu (including an administrative city under Article 11 (2) of the Special Act on the Promotion of Administrative Cities; hereinafter the same shall apply).

The head of the Gu; hereinafter the same shall apply). Two or more Sis (the Jeju Special Self-Governing Province) shall operate the electric power resource development business area.

Special Act on the Establishment of Do and the Development of Free International City, including administrative cities under Article 10 (2).

(c) Where it extends over a Gun/Gu (referring to an autonomous Gu; hereinafter the same shall apply), the electric source developer;

The head of a Si/Gun/Gu having jurisdiction over an area including the largest area or length of the business area;

means.

2. All relevant persons other than the head of a Si/Gun/Gu referred to in subparagraph 1 (hereinafter referred to as the "head of the competent Si/Gun/Gu").

The head of a Si/Gun/Gu having jurisdiction over an area affected by the implementation of the development project;

(n) The term "head of the relevant Si/Gun/Gu" means the head of the relevant Si/Gun/Gu.

3. The Minister of Trade, Industry;

(2) A project implementation plan under paragraph (1) shall include the following matters:

1. Objectives of electric resource development business;

2. Electric resource development business operator;

3. Summary of electric source facilities;

4. The location (including the particulars of land, etc.) and area of the electric source development business area;

5. Period for electric source development business;

(3) The head of the competent Si/Gun/Gu shall conduct the following activities within ten days from the date a project implementation plan is received pursuant to paragraph (1):

Daily newspapers with at least one of the following matters distributed nationwide and the relevant area:

Public announcement shall be made at least once in a daily newspaper mainly circulated, respectively, and the seal of the relevant agency shall be the person of the agency.

Residents, etc. shall be allowed to peruse a project implementation plan by inserting it on thenet website for at least 14 days.

1. Outline of electric source development business;

2. Period and place of perusal of the project execution plan;

3. The date and place of holding an explanatory meeting on the project implementation plan;

4. The period and method of submitting opinions on the project execution plan;

5. Other matters necessary for hearing the opinions of residents, etc.

(4) Where the head of the competent Si/Gun/Gu intends to make a public announcement under paragraph (1), he/she shall substitute it for the perusal period and place

the head of the relevant Si/Gun/Gu shall, in advance, determine the details thereof after hearing the opinions of the head of the relevant Si/Gun/Gu;

At least one place of inspection shall be included in the jurisdiction of the head of the Gun/Gu.

Article 18-4 (Holding of Explanatory Sessions)

(1) An electric power resource developer shall provide an explanatory meeting to hear opinions of residents, etc. pursuant to Article 5-2 (1) of the Act pursuant to Article 18.

A meeting shall be held during the inspection period under paragraph (3) 2, and in such cases, at least two Sis/Guns/Gus shall be held.

In the case of extending over the Gu, an explanatory meeting shall be held in each Si/Gun/Gu, and the electric source developer shall be the person concerned.

Where a consultation is made with the head of the Si/Gun/Gu, an explanatory meeting may be held in an integrated manner.

(2) An electric power resource developer shall not hold explanatory sessions publicly notified pursuant to Article 18 (3) for reasons such as interference with holding of explanatory sessions.

In the event that a meeting is not held or held but does not proceed normally, an explanatory meeting may be omitted.

In such cases, the electric source developer shall take the following measures, and shall be responsible for other residents, etc.:

Efforts shall be made to explain the original development project or to hear the opinions of residents, etc.

1. Public announcement by the method under Article 18 (3) of the grounds, etc. for omitting an explanatory meeting;

2. Requesting the head of the relevant Si/Gun/Gu to post explanatory materials on the website of the agency;

(3) An electric power resource developer shall write a written examination of opinions submitted by residents, etc. at the time of holding briefing sessions under paragraph (1).

50,000 shares.

Finally.

1) Although the Defendant did not submit a written response and did not appear on the date for pleading, the fact that the Intervenor’s filing an application for intervention in the court’s assistance cannot be said to be a case where it is clearly contrary to the Intervenor’s act and it cannot be said that there is no validity of litigation (see, e.g., Supreme Court Decision 2007Da53310, Nov. 29, 2007).