Plaintiff 1 and 2 others (Law Firm Maok, Attorneys Go Sung-soo et al., Counsel for the plaintiff-appellant)

Jeju Special Self-Governing Province Governor (Attorney Do governor, Counsel for defendant)

February 6, 2013

1. The Defendant confirmed that the publication of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 2011-798 on September 28, 201 is null and void.

2. The plaintiffs' respective primary and conjunctive claims are dismissed as to the public notice of the execution of harbor works as of September 4, 2012 and the public notice of the implementation plan as of January 9, 2013.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant.

1. The primary purport of the claim

On September 28, 2011, the Defendant’s announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 201-798, September 4, 2012, the announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 2012-102, and the announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 2013-18, Jan. 9, 2013

2. Preliminary purport of claim

The Defendant’s announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 201-798 on September 28, 201, the announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 2012-102 on September 4, 2012, and the announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 2013-18 on January 9, 2013

1. Details of the disposition;

A. On September 28, 201, the Defendant announced an implementation plan for the harbor works (hereinafter “the instant harbor facilities construction”) to the effect that the instant harbor facilities construction project is implemented at the second stage of the Jeju Island (hereinafter “the instant harbor facilities construction project”), including the construction of external peripheral facilities for the construction of an acquisition base necessary for the supply of the LG in Jeju Island, pursuant to Article 10(1) of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter “the Harbor Act”) pursuant to Article 10(1) of the former Harbor Act (amended by Act No. 11594, Jun. 19, 2013; hereinafter “the Harbor Act”). On March 5, 2012, the Defendant commenced the instant harbor facilities construction project around March 5, 2012.

B. On September 4, 2012, the Defendant issued a public announcement on the implementation of the instant harbor works (hereinafter “instant public announcement”) under Article 9(6) of the Harbor Act, Article 144(1)7 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter “Special Act”), which stipulates that the instant construction shall be implemented pursuant to Article 201-102 of the Notice of Jeju Special Self-Governing Province (hereinafter “the instant public announcement”). On January 9, 2013, the Defendant issued a public announcement on the implementation plan of the harbor works pursuant to Article 10(1) of the Harbor Act (hereinafter “the second public announcement”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 14, 33 (including evidence attached with a serial number), the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

(1) The first and second public notices are merely informing many unspecified persons of the name, etc. of the project implementer through the Official Gazette before commencing the instant harbor project, and do not constitute an administrative disposition that is subject to appeal.

(2) Since the first and second notices do not directly deal with the plaintiffs, they do not cause any change to the rights and obligations of the plaintiffs, and they do not infringe or are likely to infringe on the legal interests of the plaintiffs due to the first and second notices, so there is no legal interest to seek confirmation or revocation of the invalidation of the first and second notices.

(3) Since the first announcement, since the Defendant newly made the second announcement based on the instant announcement, there is no legal interest in seeking confirmation or revocation of the first announcement to the Plaintiffs.

B. Determination

(1) As to the first argument

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision should be made individually taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the act (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010)

Article 10(1) of the Harbor Act, which is the basis for the second and second public notices, provides that the implementer of the harbor project shall establish and publicly announce the implementation plan of the harbor project before commencing the harbor project. Accordingly, the first and second public notices acquire the right under the public law that the Defendant, the implementer of the project, can commence the construction of the harbor project of this case, while the owner of the land in the project district or in its neighboring areas, may be subject to various disadvantages that may limit his/her rights. As such, the first and second public notices constitute an administrative disposition that directly changes the rights and obligations of the citizens and thus constitutes an administrative disposition that is the subject of appeal litigation. Accordingly, the Defendant’s first

(2) On the second argument

Even if a third party who is not the direct counter-party to an administrative disposition is a person entitled to a decision of its propriety by filing an administrative litigation seeking the confirmation or cancellation of the administrative disposition, where the legal interests protected by law are infringed by the pertinent administrative disposition, and the legally protected interests here refer to cases where there are individual, direct, and specific interests protected by the relevant laws and regulations and regulations: Provided, That in cases where a general, indirect, and abstract interests commonly held by the general public accrue as a result of the protection of public interests, the legal interests cannot be deemed to exist (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006).

On the other hand, the construction project of this case constitutes a project subject to the environmental impact assessment under Article 22 (1) 4 of the Environmental Impact Assessment Act, and according to the written evidence Nos. 3 and 13 (including documentary evidence attached with each number), the construction project of this case is found to be located in the area subject to the environmental impact assessment and included in the area subject to the environmental impact assessment, which is operated by Plaintiff 1 and “△△△△△△△△” operated by Plaintiff 2 and 3. However, the purpose of the construction project of harbor construction is to protect the individual interests of the residents in the area subject to the environmental impact assessment, which are anticipated to cause direct and significant environmental damage due to the implementation of the harbor construction project, beyond the permissible limit of admission compared to the previous facts. Thus, the environmental benefits of the plaintiffs engaged in the land sea farming project are direct and specific interests individually protected against each individual of the plaintiffs, barring special circumstances, it is acknowledged that there is no possibility of infringement or infringement on the environmental benefits of the plaintiffs.

(3) On the third argument

The first public notice does not terminate the purpose of the disposition itself, but the first public notice does not take place on the premise that the first public notice exists effectively, so if the first public notice is revoked or invalidated, the legal effect of various procedures based on the premise that it exists effectively, would be affected by the first public notice. In particular, according to each statement of evidence Nos. 12 and 30 (including evidence attached to a serial number) of the first public notice, the defendant has proceeded with the first public notice procedure based on the premise that the first public notice is valid as the base date for compensation. In the event that the first public notice does not proceed to the principal decision by denying the benefits of confirmation of the first public notice, the residents in the project site or its neighboring residents in the first public notice face the situation where the first public notice should dispute the illegality of the first public notice by filing a lawsuit individually on the following procedures based on the premise that the first public notice is valid. Accordingly, considering these circumstances, the third public notice cannot be deemed to have extinguished legal benefits seeking the confirmation or revocation of the first public notice due to the second public notice.

3. Whether the first public notice is lawful.

First, according to Article 9(6) and the main sentence of Article 9(1), the main sentence of Article 10(1), the main sentence of Article 144(1)7 of the Harbor Act, and Article 144(1)7 of the Special Act, when the defendant executes a harbor project, the defendant first makes a public announcement of the fact, as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs, and even if the defendant establishes and makes a public announcement of the implementation plan for the harbor project before commencement of the harbor project, the fact that the defendant made the first public announcement, which is the public announcement of the implementation plan for the harbor project under Article 10(1) of the Harbor Act on September 28, 2011 without the public announcement of the implementation plan for the harbor project, is against the provisions of Article 9(6) of the Harbor Act, and thus, the defect is not cured due to the subsequent public announcement, so long as the first public announcement is null and void. Therefore, the plaintiff's primary assertion on the first public announcement is with merit.

4. Whether the public notice of this case and the second public notice are legitimate

A. The plaintiffs' assertion

The instant announcement and the second announcement contain the following defects. The instant announcement and the second announcement are null and void due to significant and apparent defects, and their second announcement and subsequent second announcement are also void, and even if not, they should be revoked.

(1) The instant public notice and the second public notice were given after the Defendant commenced construction of the instant harbor facilities, in violation of Articles 9(6) and 10(1) of the Harbor Act.

(2) In accordance with Article 85(3), 85(1)3, and 5 of the Harbor Act, and Article 144(1)7 of the Special Act, the Defendant shall pre-consult with the head of the relevant administrative agency having authority to permit the occupation and use of public waters and to change the plan for the reclamation of public waters as an implementer of the harbor project, but did not undergo such consultation procedures.

(3) According to Article 12 subparag. 1 and Article 30(1)1 of the Public Waters Management and Reclamation Act, and Article 28 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), in order to obtain permission to occupy and use public waters and a reclamation license, the consent of the relevant right holder is required. In formulating an urban/Gun management plan, the opinions of residents and the relevant local council should be heard. However, the Defendant did not obtain the consent of the Plaintiffs or seek the opinions of residents and the Jeju Special Self-Governing Province Council, and accordingly, the provisions on authorization and permission under Article 85(1)3 and 5 of the Harbor Act do not apply.

(4) At the time of the environmental impact assessment, some of the dredging points were omitted and did not conduct a similar experiment on the parts of the dredging point (see the evidence Nos. 4 and 5 of the A), the total planned ground plan (Evidence No. 8 of the A) and the land use plan (Evidence No. 9 of the A) indicate the Plaintiffs’ aquaculture as “agricultural products joint storage” instead of “gratum,” and the Plaintiffs’ aquaculture as “agricultural products joint storage.” The current status of the rivers (Evidence No. 10 of the A) did not mention at least two rivers, such as the Geumsung River, the local second-class river, and the bill of note, which were located at a place where the distance of 1 km is not lowered from the construction site. The survey on the current status of the fishery rights around the project district (Evidence No. 6 of the A) did not carry out a survey on

(5) Although the Jeju Special Self-Governing Province Council had regularly monitoring with respect to the construction of the instant harbor facilities at least twice a month, and presented its opinion to establish a comprehensive measure to prevent damage and implement the project, the Defendant did not reflect this in the instant public notice and the second public notice.

(6) According to Article 62 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), a project operator shall pay the full amount of compensation to land owners and persons concerned before commencing construction works for public works. However, in violation of the above provision, the Defendant did not hold a consultation on compensation pursuant to Article 16 of the Land Compensation Act with Plaintiff 2 and 3, and entered into an indemnity agreement with the Committee on Countermeasures against Damage Caused by Land Afforestation, which was delegated by Plaintiff 1, after March 5, 2012, only after May 24, 2012, the date of commencement of construction works.

(7) The Defendant, in the aquaculture operated by the Plaintiffs, fabricated the results of the survey on the fish plantation death in the fish plantation, and entered into an indemnity agreement by deceiving fishermen including Plaintiff 1.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In full view of the following circumstances, Gap evidence Nos. 4 through 10, 12 through 23, Eul evidence Nos. 2 and 3 (including evidence attached with each number), and the purport of the whole pleadings, the public notice of this case and the second public notice of this case do not contain any defects corresponding to the grounds for invalidation or revocation alleged by the plaintiffs. Thus, the public notice of this case and the second public notice of this case are legitimate.

(1) As to the first argument

Although Article 9(6) and the main text of Article 10(1) of the Harbor Act provide that the implementer of the harbor project shall announce the implementation and implementation plan before the harbor project, as seen earlier, the Defendant’s commencement of the construction of the harbor facility of this case on March 5, 2012, prior to the date of the instant public notice and the second public notice, the Defendant’s commencement of the construction of the harbor facility of this case on March 5, 2012, the date of the instant public notice and the second public notice, it cannot be said that the instant public notice and the second public notice made after the commencement of the construction of the harbor facility of this case are unlawful, except that the construction of the harbor facility

(2) On the second argument

In light of the overall purport of the aforementioned evidence, the defendant sent a public notice to the head of the Jeju Special Self-Governing Province and the Jeju Mayor (the city and the city) requesting consultation on the amendment of the urban and Gun management plan in the Jeju Special Self-Governing Province on September 23, 2011, and then sent an opinion from the head of the Jeju Special Self-Governing Province on September 29, 201 and October 7, 201, after consultation with the head of the Jeju Special Self-Governing Province and the head of the Jeju Special Self-Governing Province on the change of the urban and Gun management plan before the public notice and the second public notice; the fact that the defendant, as the head of the Jeju Special Self-Governing Province and the head of the Jeju Special Self-Governing Province did not require consultation on the occupancy and use of public waters under Article 17 (6) 17, 29, or 38 of the Enforcement Rule of the Ordinance on the Establishment of Jeju Special Self-Governing Province, is also not required to apply the Public Waters Management Act.

(3) On the third argument

Article 85(1)3 and 5 of the Harbor Act and Article 144(1)7 of the Special Act provide that where the fact of implementation of a harbor project is publicly announced pursuant to Article 9(6) of the Harbor Act, matters consulted with the head of an administrative agency pursuant to Article 30 of the National Land Planning Act shall be deemed to have been permitted to occupy and use public waters and a license to reclaim public waters pursuant to Articles 8 and 28 of the Public Waters Management Act. As seen in the above paragraph(2), once the Defendant consulted with the head of the relevant administrative agency or the head of the relevant administrative agency for the purpose of reclaiming public waters and altering an urban/Gun management plan pursuant to the National Land Planning Act, it shall be deemed that the alteration of an urban/Gun management plan pointing out by the Plaintiffs, permission to occupy and use public waters, and a license to reclaim public waters shall be deemed to have been duly made. On the other hand, it shall not be deemed that the Defendant’s opinion or consultation with the competent administrative agency regarding the matters subject to authorization and permission should be deemed to have been held separately for 10 hours and 20 days.

(4) As to the fourth argument

If a project subject to the environmental impact assessment as prescribed by the Environmental Impact Assessment Act without going through such an environmental impact assessment, such disposition shall be deemed unlawful, but if such procedure was conducted, even if the degree of the defect is somewhat inadequate, so long as it is not different from that of the legislative purport of the environmental impact assessment system, such defect is merely one element of determining whether there is deviation from or abuse of discretion in the approval, etc., and such disposition is not unlawful as a matter of course (see Supreme Court en banc Decision 2006Du330, supra). Considering the overall purport of arguments on the above evidence, the defendant cannot be seen as an unlawful environmental impact assessment (the main proposal) by conducting the environmental impact assessment on September 7, 201, and the fact that the above environmental impact assessment plan cannot be seen as an area subject to the environmental impact assessment (the above environmental impact assessment by submitting the environmental impact assessment plan to the Jeju Special Self-Governing Province) and its original environmental impact assessment (the above environmental impact assessment plan’s new environmental impact assessment on September 30, 2011).

(5) As to the fifth argument

The opinion of the Jeju Special Self-Governing Province Council pointing out by the plaintiffs is merely an incidental opinion presented to the consent proposal regarding the contents of the environmental impact assessment (review and supplementation). The defendant can only implement the construction of the harbor facility of this case by reflecting the above incidental opinion, and cannot be deemed to bear the duty to reflect it in the public notice of this case and the second public notice. Therefore, the plaintiffs' fifth assertion is without merit.

(6) As to the fifth argument

Article 62 of the Land Compensation Act provides that a project operator shall pay the full amount of compensation to landowners and persons concerned before commencing the relevant public works. However, according to Article 77(2) of the Harbor Act, the public notice of an implementation plan for a harbor works is deemed to be a project approval under Article 20(1) of the Land Compensation Act and a public notice of project approval under Article 22 of the same Act, and thus, the subject of compensation is finalized. Thus, even if the plaintiffs are eligible for advance compensation as the plaintiffs' assertion, it shall not be deemed to violate Article 62 of the Land Compensation Act on the ground that the defendant's commencement of the construction of the instant harbor facilities without paying the full amount of compensation to the plaintiffs, notwithstanding the illegality that the public notice of this case and the second public notice were made before the payment of compensation amount. Accordingly, the plaintiffs' fifth assertion

(7) As to the first instance argument

Even if the circumstances asserted by the plaintiffs are acknowledged, this does not constitute a defect that may invalidate or revoke the instant public notice and the secondary public notice. Therefore, the Plaintiffs’ claim is without merit.

5. Conclusion

Therefore, the plaintiffs' primary claims against the first public notice among the claims of this case are justified. Each primary and conjunctive claims against the notice of this case and the second public notice of this case are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment Form 5]

Judges Orunk-si (Presiding Judge)