Where it is deemed that there is a change in environmental impact after an agency installing waste disposal facilities determines and publicly notifies the affected adjacent areas, whether the affected adjacent areas can be adjusted in accordance with the latter part of Article 17 of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance,

According to Article 17 (1) and (2) of the current Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, an agency installing waste disposal facilities shall determine and publicly announce the surrounding areas that are affected environmentally due to the installation and operation of waste disposal facilities (hereinafter referred to as " affected neighboring areas") within the period prescribed by Presidential Decree from the date when the plan for installation of waste disposal facilities has been publicly announced, but in such cases, it shall require a specialized research institution selected by the Resident Support Consultative Body to investigate environmental impact and collect the results thereof. Provided, That where the Resident Support Consultative Body deems it unnecessary to investigate environmental impact in the surrounding areas, it may omit the relevant investigation or substitute it with the written opinion of review by the relevant experts. Meanwhile, the latter part of Article 17 of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs, provides that "Where there is a change in environmental impact after the determination and public announcement of the affected adjacent areas, the agency installing waste disposal facilities

Article 17 (1) and (2) of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs, Article 17 of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities, Assistance,

See Attached List of Plaintiffs (Law Firm Jeong, Attorney Kim Jin-soo, Counsel for the plaintiff-appellant)

Head of Busan Metropolitan City

Green Environment Countermeasure Committee and one other (Law Firm International Law Firm, Attorneys Creation System, et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2013Nu2952 decided June 13, 2014

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Defendant established the Gangseo-gu Busan Metropolitan City Committee for the Reclamation of Biological Waste (hereinafter “the instant waste reclamation site”) in the Gangseo-gu Busan Metropolitan City, and at the time, residents of 27 villages, including 11 villages, including the Plaintiff’s dwelling ○○ Village, etc. (hereinafter “Nasan Village”), including the residents of the 27 communities in the Greensan-dong, opposed this, and two representative members were elected to organize the Committee for the Countermeasures against the Green Green Industry (hereinafter “The Green Industry Countermeasures Committee”).

B. On September 18, 2001, the Defendant and the Green Environment Countermeasure Committee agreed on the installation and operation of the instant waste reclamation site, the creation and support of the Resident Support Fund (hereinafter “the first agreement”). The area is the affected area under Article 17(1) of the former Act on the Promotion of the Installation of Waste Treatment Facilities and Assistance, etc. to their Environs (amended by Act No. 7169 of Feb. 9, 2004; hereinafter “former Waste Promotion Act”). The impact level includes the contents that are to be determined according to the results of environmental impact assessment (Article 6 of the Agreement).

C. After that, the Defendant, a resident support council under Article 17(2) of the former Waste Promotion Act, organized the Defendant’s Intervenor’s Intervenor’s Intervenor’s Busan Environment Resource Park Support Council (hereinafter “resident support council”), and made a decision on August 8, 2003 on the affected neighboring area (hereinafter “the first decision and public notice”), after going through the procedures prescribed by relevant Acts and subordinate statutes, having a specialized research institute selected by the resident support council investigate environmental impact.

According to the initial determination and decision, the discharge of green mountain dong was determined as the affected neighboring area, and ○○ Village among the mountain dong villages became an area with indirect influence A (an area which may have an influence on the residents' living on a intermittent basis by air, malodor or noise) and an area with indirect influence B (an area which may cause inconvenience to the residents' living by air, malodor or noise). The rest of villages became an area with indirect influenceD (an area where there is a possibility that the residents may cause substantial inconvenience to their living due to the existence of the instant waste reclamation site).

D. The Defendant, based on the written review opinion, determined and announced on November 28, 2012 on the basis of the foregoing written review opinion, that the Resident Support Consultative Body does not need to investigate the environmental impact and can substitute it by the relevant experts’ written review opinion (hereinafter “instant modified determination”). As a result, the village in dispute was determined as “no environmental impact” in the area of indirect impact A, B, or D, and was excluded from the affected neighboring areas.

E. According to the above review opinion, there is no environmental impact of air, malodor and noise on the communities in dispute due to the installation and operation of the instant waste reclamation site.

Meanwhile, the population of villages in the affected neighboring areas still has decreased from 4,722 as of December 2003 to 3,170 as of February 2014, while the population of the village in the affected areas has decreased from 4,722 to 32.9% as of February 2014, while the population of the village in the dispute has increased from 3,476 to 9,513 from 3,476 to 9,513.

In addition, according to the average daily amount of waste brought into the instant waste reclamation site and the average number of waste carriage vehicles per day entering the instant waste reclamation site, reduced from 202 1,545 tons, from 275 to 780 tons, from 2012 to 93.

In addition, some of the villages in dispute after the initial decision and decision are being developed or being developed as branch offices, general industrial complex, chemical industrial complex, chemical general industrial complex, signal general industrial complex, undisclosed foreign investment zone, international logistics complex, etc., and the residential complex of several thousand households is being developed or being developed.

2. After finding the facts of the judgment, the court below judged that the defendant's initial determination, determination, and provision of living allowances constitutes an expression of public opinion. ① 27 village residents agreed on the condition that the defendant minimize living damage and thoroughly implement measures for the construction of the optimal reclamation site. The first agreement specified the discharge of green mountain dong as the affected area, as well as the details of support for the above residents, and ② the defendant determined the surrounding area as the affected area, considering that there was a possibility of causing severe inconvenience to life due to aesthetic factors such as mental damage that the residents may suffer, even if there was no environmental impact on the atmosphere, malodor, and noise at the time of the initial determination, and determined that the alteration was unlawful after considering the fact that there was no violation of the relevant Acts and subordinate statutes, ③ the alteration announcement was made in the affected area, and most of the members of the village gas reclamation center were found to have resided in the affected area after the initial announcement of the decision on the alteration of the waste reclamation site's existing rights in preparation for the increase of the population in the surrounding areas, ④ the installation of the rural gas recycling center's.

In addition, in addition to the above judgment, even if the Defendant’s primary agreement and the initial determination and public notice do not fall under the name of the administrative agency’s public opinion list, in view of the fact that the disposition agency can withdraw the disposition where there is no separate legal basis, or where there is a change in circumstances that no longer need to continue the original disposition, or where the need for important public interest arises, the Plaintiffs have received living allowances by village unit or individual as the village in the dispute has been determined as the affected area. Without any reason attributable to them, the Plaintiffs were unable to receive the above living allowances which have been continuously received for several years as the public notice of the modified decision in this case. In light of the fact that there was a difference in circumstances that there was no need to continue the initial determination and public notice in this case, or that it is difficult to deem that there was a serious change in circumstances, such as mental damages suffered by the Plaintiffs due to the construction and operation of the waste reclamation site in this case.

3. However, we cannot agree with the above determination by the court below for the following reasons.

A. According to Article 17(1) and (2) of the current Waste Promotion Act, an agency installing waste disposal facilities shall determine and publicly announce the surrounding area that is affected environmentally due to the installation and operation of the waste disposal facilities (hereinafter “ affected neighboring area”) within a period prescribed by Presidential Decree from the date when the plan for installation of waste disposal facilities was publicly announced, but in such cases, it shall require a specialized research institution selected by the Resident Support Consultative Body to investigate the environmental impact and collect the results of the investigation; Provided, That where the Resident Support Consultative Body deems it unnecessary to investigate the environmental impact of the surrounding area, it may omit the investigation or substitute it by the written opinion of review by the relevant experts, and on the other hand, Article 17 of the Enforcement Decree of the same Act provides that “Where there is a change in environmental impact after the determination and public notice of the affected area, the agency installing waste disposal facilities may adjust the affected adjacent areas where there is a change in the affected area, even after the determination and

Meanwhile, in order to apply the principle of the protection of trust to the acts of an administrative agency in administrative legal relations, the administrative agency should first name the public opinion that is the subject of trust to the individual. In this case, the determination of whether there is a public opinion statement of an administrative agency should be based on the substance in light of the organization and duties of the person in charge, specific circumstances leading to the relevant speech and behavior, and the credibility of the other party (see, e.g., Supreme Court Decision 2009Du21499, Mar. 25, 2010).

B. 1) The judgment of the court below that it is reasonable to view that the Defendant’s first agreement with the Green Industry Countermeasure Committee to determine the discharge of green dong as the affected adjacent area, and that the Defendant’s subsidization of living allowances to the Green Industry Countermeasure Committee is an expression of public opinion after the initial determination and public notice based on the above determination is not acceptable. However, in light of the legislative purport of the above provision that the affected adjacent area can be adjusted in cases where there is a change in environmental impact after the determination and public notice of the affected adjacent area, and that it conforms to the rule of law to exclude the areas where there is no environmental impact any change in the affected adjacent area due to the construction and operation of the waste reclamation site from the affected adjacent area, even if the environmental impact has been changed after the determination and public notice of the above expression, it is difficult to view that the village does not exclude the affected area from the affected adjacent area, and even if there is no environmental impact on the affected area, it is also difficult to deem

In addition, as seen earlier in the latter part of Article 17 of the Enforcement Decree of the Waste Promotion Act, where an agency installing waste disposal facilities deems that there is a change in environmental impact after the determination and announcement of the affected adjacent areas in accordance with the above provisions, the said provision itself can adjust the affected adjacent areas. Therefore, as long as there is no need to maintain the original determination and notification as in the judgment of the court below, it is not possible to modify the initial determination and notification even if there is a change in circumstances or there is a need for important public interest.

2) Furthermore, we examine whether there is a change in the environmental impact of the village to exclude the dispute from the affected adjacent areas after the initial determination and public notice. The following circumstances, which were inferred or revealed in the records as seen earlier, are, after the initial determination and public notice, the quantity of waste brought into the affected areas, namely, the number of waste carriers coming from the waste reclamation site, and the number of waste transport vehicles coming from the waste reclamation site, were considerably reduced. At the time of the determination and public notice of the modification, there is no environmental impact on the village in the dispute at the time of the announcement of the modification. It is sufficiently sufficient to consider that green mountain dong is a location where the waste reclamation site is located in a large number of industrial complexes and housing complexes after the initial determination and public notice, and that there is sufficient environmental impact of the village in the dispute at the time of the first determination and public announcement of the designation and public announcement of the modification, and that there is sufficient possibility that there was an environmental change in the affected areas to the extent that there was an environmental noise reduction from the affected areas.

Therefore, the decision of modification of the instant case should be deemed lawful as it is in accordance with the Waste Promotion Act and the Enforcement Decree thereof.

3) Nevertheless, the lower court determined that the instant modified determination was unlawful on the grounds as seen above. In so determining, the lower court erred by misapprehending the legal doctrine on the determination of whether there was a change in environmental impact after the initial determination and public notice beyond the bounds of the principle of logic and experience and the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the withdrawal of the beneficial administrative act.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Chang-suk (Presiding Justice)