In a case where the head of the Regional Construction and Management Administration made a reply to the purport that it is difficult to remove soundproof walls installed under the Environmental Impact Assessment Act as the owner Gap did not obtain a building permit due to soundproof walls, and the neighboring land owner Gap did not obtain a building permit due to soundproof walls, the case holding that the above reply cannot be subject to a disposition of refusal which is subject to appeal.

In a case where the head of the Regional Construction and Management Administration made a reply to the effect that it is difficult to remove soundproof walls installed to prevent environmental damage in the surrounding area under the Environmental Impact Assessment Act because the operator of the Regional Construction and Management Administration constructed soundproof walls while constructing access roads to the national industrial complex, and the owner Gap filed a civil petition for removal of soundproof walls because he did not obtain a building permit on his own land with soundproof walls, the case holding that the lawsuit seeking revocation is unlawful on the grounds that the removal of soundproof walls is an act of non-authorized fact, the above reply is merely an act of giving public notice of the response to the civil petition, and it does not cause any change in the rights and obligations of Gap due to the response, and the contents of the relevant Acts and subordinate statutes cannot be deemed as a ground law that allows the removal of static facilities installed by reflecting the neighboring land owner in the business plan.

Articles 2(1)1 and 12 of the Administrative Litigation Act

Plaintiff (Law Firm Taedong, Attorneys Li-gu et al., Counsel for the plaintiff-appellant)

Daejeon Regional Construction and Management Administration

July 23, 2014

1. The instant lawsuit shall be dismissed.

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

The defendant's rejection disposition against the plaintiff on May 31, 2013 against the plaintiff is revoked.

1. Basic facts

A. The Plaintiff is the owner of the instant land (hereinafter “instant land”) of the Seogjin-si ( Address 1 omitted), 398 square meters wide, and 157 square meters wide prior to ( Address 2 omitted).

B. On December 31, 1991, pursuant to the former Industrial Sites and Development Act (amended by Act No. 4541 of Mar. 6, 1993), the Minister of Construction and Transportation, at the time, designated the area of tingu Won-gu, Chungcheongnam-do as a national industrial complex for tingu, Chungcheongnam-do. On September 13, 1994, approved the implementation plan for the development project for the development project for the tingu National Industrial Complex in Chungcheongnam-do, Chungcheongnam-do. On July 20, 2009, the Defendant was selected as a project implementer in accordance with Article 209-483 of the Ministry of Land, Transport and Maritime Affairs’s notification on July 20, 209, while changing the development plan for the tin country industrial complex (development plan).

C. The Defendant, while executing the construction of access roads within the litular national industrial complex, installed the soundproof walls listed in the attached list (hereinafter “instant soundproof walls”) on the land adjacent to the instant land ( Address 3 omitted), ( Address 4 omitted), and ( Address 5 omitted).

D. On May 23, 2013, the Plaintiff filed a civil petition with the Defendant stating that “The removal of the soundproof walls in the instant land is different because the soundproof walls did not obtain a building permit on the instant land due to the soundproof walls.” However, on May 31, 2013, the Defendant sent a reply to the Plaintiff on May 31, 2013 to the effect that “The soundproof walls in the instant case were installed for the prevention of environmental damage in the surrounding area according to the results of environmental impact assessment under the Environmental Impact Assessment Act, and thus it is difficult to remove”

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 5 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

The response of this case does not affect the plaintiff's right, and there is no legal or sound application right to seek removal of soundproof walls from the plaintiff. Thus, the response of this case is not an administrative disposition that is subject to appeal litigation.

B. Determination

If an administrative agency’s refusal of an action following a citizen’s affirmative filing of an application constitutes an administrative disposition that is subject to appeal litigation, the filing of the application must be an exercise of public authority or a similar administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen must have the right to file an application in accordance with the law or sound reasoning that requires the citizen to refrain from such action. In addition, the existence of the right to file an application, which serves as a premise for recognizing the disposition of rejection, is determined abstractly by examining, in a specific case, the applicant’s recognition of such right by interpretation of the relevant law without considering who is the applicant in the relevant case (see Supreme Court Decision 2007Du20638, Sept. 10, 200).

However, the removal of soundproof walls applied by the Plaintiff is an act of non-powerd fact, and thus, it cannot be deemed an exercise of public authority or an administrative action corresponding thereto. The answer in this case merely aims to inform the Defendant’s response to the Plaintiff’s civil petition, but does not result in changes in the rights and obligations of the public, such as granting or restricting the Plaintiff’s right or imposing obligations on the Plaintiff.

In addition, Article 26 of the former Industrial Sites and Development Act (amended by Act No. 11020, Aug. 4, 201) provides that "a new public facility installed by a project operator in the course of implementing an industrial complex development project shall gratuitously revert to the State or a local government which is to manage the facility." Article 22 (1) 2 of the Environmental Impact Assessment Act provides that "a person who intends to conduct an industrial site or industrial complex development project shall conduct an environmental impact assessment." Article 32 of the Environmental Impact Assessment Act provides that "where a project plan, etc. consulted with the Minister of Environment is modified, the head of the approving agency shall request a re-consultation to the Minister of Environment." Article 33 of the same Act provides that "a project operator shall prepare an environmental preservation plan, etc., and reflect it in the changed project plan, etc. when implementing the project plan, etc.," and Article 35 of the same Act provides that "a project operator shall implement the contents of consultation reflected in the project plan, etc., separate from seeking revocation of the project plan or claim for compensation for losses due to a public project.

Therefore, since the reply of this case cannot be viewed as a rejection disposition subject to appeal litigation, the lawsuit of this case is unlawful.

3. Conclusion

Therefore, we decide to dismiss the instant lawsuit, and decide as per Disposition.

[Attachment] List: omitted

Judges Kim Byung-sik (Presiding Judge)