[1] Whether the "project which acquires the land, etc. for electric power source facilities installed or obtains the right to use the installed electric power source facilities" without hearing opinions from residents, etc. under Article 5-2 (1) 4 of the Electric Power Source Development Promotion Act includes cases concerning electric power source facilities installed without the landowner's consent (affirmative)

[2] Where the Minister of Trade, Industry and Energy approves an execution plan for electric power resource development business, whether a drawing indicating electric power resource development area should be prepared in a topographical map indicating cadastral records pursuant to Article 8(2) of the Framework Act on the Regulation of Land Use and publicly notified in

[1] Article 5-2(1)4 of the Electric Source Development Promotion Act / [2] Article 2 subparag. 1, Article 5 subparag. 1 [Attachment Table] of the Framework Act on the Regulation of Land Use, Articles 5 and 8(2) of the Electric Source Development Promotion Act

Taesung C&C (Law Firm LLC, Attorneys Yang Sung-soo et al., Counsel for the plaintiff-appellant)

The Minister of Trade, Industry and Energy (Attorney Lee Jae-hwan, Counsel for defendant)

Korea Electric Power Corporation (Attorney Lee Jae-tae, Counsel for defendant-appellee)

Seoul High Court Decision 2010Nu37140 decided September 27, 2011

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

The grounds of appeal are examined.

1. Judgment on ground of appeal No. 1

Article 5-2 (1) of the Electric Power Source Development Promotion Act provides that "where an electric power source developer intends to obtain approval of an execution plan or approval for modification of an execution plan for electric power source development business from the Minister of Knowledge Economy (the name of the defendant was changed due to the revision of the Government Organization Act by Act No. 11690, Mar. 23, 2013), he/she shall hear opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of the target project through inspection and presentation before applying for approval or approval for modification of the implementation plan." Article 5-2 (1) of the Electric Power Source Development Promotion Act provides that "the project that acquires the land, etc. for electric power source facilities installed or obtains the right

However, in light of the language and text of the proviso of Article 5-2(1)4 of the Electric Power Source Development Promotion Act, an electric power source developer does not stipulate that the consent of the landowner is not required when installing the electric power source facilities. Even if electric power source facilities have been installed without securing the land source, the installation of electric power source facilities is required to restore it to its original state and secure the land source right, and it is necessary to do so in society without any similar effect to the owner of the relevant land. In light of the fact that the approval of the project implementation plan to secure the right to use the land, etc. already installed may be controlled by taking into account the private interest of securing the public interest due to the implementation of the relevant project and securing the private property right of the private person when examining whether there is deviation or abuse of discretion, it is reasonable to deem that not only the case of electric power source facilities installed with the consent of the landowner, but also the case of electric power source facilities installed without the consent of the landowner.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the hearing procedure of opinions by residents under the Electric Source Development Promotion Act as otherwise alleged in the ground of appeal.

2. Judgment on ground of appeal No. 2

Article 2 subparag. 1 of the Framework Act on the Regulation of Land Use provides that "Areas, Districts, etc." means areas, districts, zones, regions, complexes, urban/Gun planning facilities, etc., regardless of names, such as areas, zones, and areas, zones, complexes, urban/Gun planning facilities, etc., on which restrictions on the use and preservation of land are placed, such as restrictions on the use and preservation of land (in cases of any sea surface adjacent to land and where such restrictions are restricted as the land, including such sea surface), and Article 5 subparag. 1 of the same Act provides that "areas, districts, etc., as prescribed in the attached Table" may be newly established, and [Attachment Table] provides for "electric source development project zones under Article 5 of the Electric Source Development Promotion Act" as areas, districts, etc. where the regulation of land use is imposed.

Furthermore, Article 5 (3) 2 of the Electric Power Source Development Promotion Act provides that the electric power source developer should include the location and area of the electric power source development project area in the implementation plan in order to establish the implementation plan for electric power source development business and obtain the approval of the

Therefore, the electric source development business zone constitutes an area or district stipulated by the Framework Act on the Regulation of Land Use, and the defendant's approval of the execution plan for electric source development business constitutes "where the head of the central administrative agency designates an area, district, etc." under the main sentence of Article 8 (2) of the Framework Act on the Regulation of Land Use. Therefore, when the defendant approved the execution plan for electric source development business, he/she should prepare a drawing specifying the electric source development business

According to the evidence duly admitted by the court below, on November 6, 2008, prior to the disposition of this case, the defendant entered the opinion of the defendant and the National Intelligence Service to the effect that according to the Framework Act on the Regulation of Land Use, in relation to the notification of the topographical map of electric source development business area, the area of electric source development business is subject to the notification of topographic map under the Framework Act on the Regulation of Land Use, but according to the State Geographical Information Security Regulations, the two regulations conflict with each other. Accordingly, on November 12, 2008, the Ministry of Land, Transport and Maritime Affairs made an inquiry about the management plan of the topographic map of electric source development business area. However, on November 12, 2008, the electric source development business area needs to be announced in accordance with Article 8(2) of the Framework Act on the Regulation of Land Use, but security issues may arise if the drawing is indicated in relation to electric facilities (including transformation, transmission lines, transmission towers, etc.). Accordingly, it is desirable that the detailed drawing should be managed by the public announcement in detail of the land of this case.

In light of the fact that the Defendant publicly announced the location and size of the electric source development business area where the instant disposition was rendered and the residents in the vicinity of the instant land are deemed to have been well aware of the location of the electric source, and that the geographical information on the electric source of this case is likely to undermine public safety and interests if the geographical information on the electric source of this case is disclosed, it cannot be deemed that the Defendant publicly announced the details of the land, etc. where the location and area of the electric source of this case, other than the detailed drawing, is located in the instant disposition.

Therefore, although the judgment of the court below is somewhat inappropriate, the conclusion that rejected this part of the plaintiff's assertion is justifiable, and it is not erroneous in the misapprehension of legal principles as to the procedure under Article 8 of the Framework Act on the Regulation of Land Use, which affected the conclusion of the judgment.

3. 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 Shin (Presiding Justice)