(영문) 대법원 2014.11.13.선고 2014두10127 판결

A. The Defendant established the Gangseo-gu Busan Metropolitan City Committee for the Conservation of Biological Waste (hereinafter referred to as the “the instant waste reclamation site”) in Gangseo-gu Busan Metropolitan City, and at the time, residents of 27 villages, including the 11 village, including the private village, etc. (hereinafter referred to as “the village in dispute”), the residents of the 11st village, including the plaintiffs’ living living, were opposed to this, and two representative members were elected to organize the Committee for the Countermeasures against the Green Industry Environment (hereinafter referred to as the “Committee for the Countermeasures against the Green Industry”).

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 referred to as the “first agreement”). The entire area includes 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 referred to as the “former Waste Promotion Act”). The impact level includes the contents that are to be determined according to the results of the environmental impact assessment (Article 6 of the Agreement).

C. After that, the defendant, which is a council for supporting residents under Article 17(2) of the former Waste Promotion Act, organized the Intervenor’s Intervenor’s Intervenor’s Intervenor’s Busan Environment Resource Park Resident Support Council (hereinafter “resident support council”), and made a decision on August 8, 200 on the determination of surrounding areas (hereinafter “the first decision”) after going through the procedure prescribed by relevant Acts and subordinate statutes, such as 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 dong was determined as the affected neighboring area, and the private village among the mountain dong villages became the area of indirect influence A (an area which may have an impact on the residents' living on a intermittent basis by air, malodor or noise) and the area of indirect influence B (an area which may cause inconvenience to the residents' living by air, malodor or noise) and the other villages became the area of indirect influenceD (an area where there is a possibility that the residents may cause severe inconvenience to their living due to the existence of the waste reclamation site in this case).

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 the written review opinion of the relevant experts for the review of the opinions by the relevant experts (hereinafter referred to as the “instant modified decision”). As a result, the village in dispute was determined as an area where there is no environmental impact in the area where indirect influence A, B, or indirectly affected D, and was excluded from the affected area. According to the above written review opinion, the construction and operation of the instant waste reclamation site has no environmental impact on the communities in dispute.

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 waste volume brought into the instant waste reclamation site and the average daily waste transport volume of the instant waste reclamation site, the decrease was made from 1,545 tons in 202, from 275 to 780 tons in 2012, and 93. In addition, after the initial determination and public notice, some of the villages in the dispute were developed or are being developed as branch offices, general industrial complex, chemical industrial complex, chemical industrial complex, signal general industrial complex, non-foreign investment zone, and international logistics industrial complex, and the housing complex of several households was or is being developed.

2. After recognizing 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 prepare measures for the construction of the optimal landfill, and thoroughly implement them. The first agreement specified that the discharge of green mountain dong was determined as an area under the surrounding influence of the above residents. ② The defendant determined that there is a possibility that the air, malodor, noise, and noise might cause severe inconvenience to life due to the aesthetic factors, such as mental damage that the residents may suffer even if the initial determination, and the process did not violate the relevant Acts and subordinate statutes. ③ The alteration was made after considering the fact that some of the members of the committee on measures for the reclamation of green melting environment did not think of their existing rights in preparation for the increase of population in the surrounding areas, the court determined that the first agreement was made as the affected area, and that the first agreement was made in accordance with the first agreement and the first agreement, and that the first agreement was made to increase the number of residents' voting rights in the surrounding areas.

In addition, the court below held that in addition to the above judgment, even if the defendant's primary agreement and the initial determination and public notice do not correspond to the name of the administrative agency's public opinion list, in view of the fact that the disposition agency can withdraw the disposition in the event of a change in circumstances that no separate legal basis exists, or where the need for important public interest arises, the plaintiffs have received living allowances for each village unit or individual as the village in the dispute has been determined as the affected area. Without any reason, the plaintiffs could not receive the living allowances for each village in the affected area.

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 areas that may be affected environmentally due to the installation and operation of the waste disposal facilities (hereinafter referred to as " surrounding areas") within the period prescribed by Presidential Decree from the date when the plan for installation of waste disposal facilities has been publicly announced. In such cases, it may require a specialized research institution selected by the Resident Support Consultative Body to investigate the environmental impact and collect the results of the investigation. However, where the Resident Support Consultative Body deems it unnecessary to investigate the environmental impact of the surrounding areas, it may omit the investigation or substitute it by the written opinion of review by the relevant experts. Meanwhile, the latter part of Article 17 of the Enforcement Decree of the same Act provides that "where there is a change in the environmental impact after the determination and public announcement of the plan for installation of waste disposal facilities, the agency installing waste disposal facilities may adjust the affected areas where there is a change in the environmental impact

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 such a 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. 3, 2010).

B. 1) In light of the legislative intent of the above provision and the fact that it is consistent with the rule of law to exclude the areas where there is no change in environmental impact due to the construction and operation of the waste reclamation site from the affected neighboring areas, it is difficult to view that the dispute villages are not excluded from the affected areas, even if the environmental impact of the surrounding areas is changed after the original determination and decision based on the above determination and decision, it is reasonable to view that it is a public expression of opinion to support living allowances to the Green Environment Committee. However, in light of the legislative intent of the above provision that the affected areas can be adjusted if there is a change in environmental impact after the determination and decision of the affected areas, and that it is consistent with the rule of law to exclude the areas where there is no change in environmental impact due to the construction and operation of the waste reclamation site from the affected areas.

In addition, as seen earlier in the latter part of Article 17 of the Enforcement Decree of the Waste Promotion Act, where there is a change in environmental impact after the determination and announcement of the affected adjacent areas, the agency installing waste disposal facilities may adjust the affected areas in the event that there is a change in environmental impact pursuant to the above provisions, so the provision itself becomes a ground for changing the affected areas. As such, as in the judgment of the court below, there is no need to continue the original determination and notification, or there is no change in circumstances where it is no need to continue the affected areas, or there is a need

2) Furthermore, we examine whether there is a change in the environmental impact of excluding industrial complexes around the surrounding areas after the initial determination and public notice. The following circumstances, which could be inferred or recorded from the foregoing facts, were considerably reduced, namely, the quantity of waste brought into the instant waste reclamation site after the initial determination and public notice, and the number of waste transport vehicles coming into the waste reclamation site. The modification of the instant waste reclamation area did not have any environmental impact on the surrounding areas at the time of the public notice of the modification, and it was sufficiently sufficient to consider that green mountain-dong is the place where the waste reclamation site is located, and that there was a representative industrial complex in Busan, and to reflect this, it is sufficient to consider that there was an environmental impact on the affected area by the first determination and public notice of the first time, and that there was an environmental change in the affected area between the waste reclamation site and the facilities adjacent to the instant waste reclamation site, and that there was a possibility that there was an environmental change in the affected area from the first determination and public notice of the waste reclamation center to the point of environmental pollution reduction.

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 decision for modification was unlawful on the grounds as seen earlier. 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 free evaluation of evidence against logical and empirical rules and by misapprehending the principle of trust protection and the withdrawal of beneficial administrative acts, thereby adversely affecting the conclusion of the judgment.

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.