2016Guhap5166 Invalidity of the determination of road zones

A person shall be appointed.

Head of Suwon Regional Construction and Management Administration

May 12, 2017

June 2, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's decision on a road zone B made on July 19, 2007 by the original State Regional Land Management Office B shall be null and void.

confirmation.

1. Details of the disposition;

In accordance with Article 25 of the former Road Act (amended by Act No. 8852 of Feb. 29, 2008), the Defendant determined and publicly announced a road zone as follows (hereinafter referred to as the "disposition in this case") pursuant to Article 25 of the former Road Act (amended by Act No. 8852 of Feb. 29, 2008), and publicly announced it (hereinafter referred to as the "disposition in this case"); the Defendant did not dispute over the issue; the entry in the evidence No. 1 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the F’s portion indicated as F in the environmental impact assessment report of the instant disposition is not the actual F, but the F did not entirely conduct environmental impact assessment, the instant disposition lacking environmental impact assessment is null and void.

B. Relevant legal principles

If a disposition, such as approval, was made without going through such an environmental impact assessment as prescribed by the Environmental Impact Assessment Act, with respect to a project subject to the environmental impact assessment, the said disposition should be deemed to be unlawful, but if the contents of the environmental impact assessment were to be somewhat defective, the degree of the defect is sufficient to achieve the legislative purport of the environmental impact assessment system, and as long as the degree of the defect is not different from that of the failure to conduct the environmental impact assessment, the defect is merely one element of determining whether there was a deviation or abuse of discretionary power from the pertinent approval, etc., and it does not necessarily constitute an unlawful disposition such as approval, as a matter of course, due to the defect (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

(c) Fact of recognition;

The following facts are acknowledged according to the facts without dispute, Gap evidence 1, Eul evidence 6, Eul evidence 6, Eul evidence 13, 14 (including numbers), the results of the verification by this court and the purport of the whole pleadings.

(1) F is located in G (hereinafter “G”) when the road zone specified in the instant disposition passes. F is located in H land, i.e., Samsung, and J land in Samsung, Y, and Y H land in the Sincule, Y, and Hacule, H land in the instant disposition, which is the erode site, were included in the zone as defined in the instant disposition. On the other hand, H land was not purchased by consultation or expropriated for reasons such as delay in compensation procedures. On the other hand, it was anticipated that H land in the instant road zone was an obstacle to be purchased by consultation or expropriated under the Land Compensation Act, and that it was predicted that the noise impact assessment was conducted on November 2005, which was the previous 0 point of the instant disposition, based on the measurement of the environmental impact assessment conducted around 1, 2005, and that it was predicted that the noise impact assessment was conducted as an independent noise impact assessment standard of 6m in the instant road zone.

D. Determination

In full view of the following circumstances acknowledged by the relevant legal principles and the facts recognized, even if the environmental impact assessment in this case was somewhat defective based on the F’s erroneous indication of the position and the waste price, it cannot be deemed that the degree of the defect is to the extent that the legislative intent of the environmental impact assessment system cannot be achieved, and thus, it cannot be deemed that the degree of the defect was not different from that of the failure to conduct the environmental impact assessment, and even if the environmental impact assessment was somewhat poor, it cannot be deemed that there was a serious defect in the disposition in this case and that such defect was evident in appearance.

① At the time of the instant disposition, the F Troop and melting site were incorporated into a road zone, and the inspection building incorporated into a road zone was anticipated to be removed as obstacles, and thus there was no need to conduct an environmental impact assessment on the inspection building scheduled to be removed. Even if the instant disposition was not purchased by consultation or expropriated, H land located with a large erooper.

Even if the criteria for determining the illegality of the disposition were to be determined, since it was at the time of the disposition, it cannot be said that the environmental impact assessment or the instant disposition was retroactively unlawful on account of the circumstances after such disposition was taken.

② As long as an environmental impact assessment was conducted based on various predicted points in a road zone and its surrounding area, including Samsung angle in the instant environmental impact assessment, it cannot be deemed that there is little defective points, even if there is no environmental impact assessment.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge is a judge.

Judges Ish Jeong-hee

Judges Park Jae-young