2017Guhap81168 Nullification of a disposition of approval of an execution plan for electric power resource development business

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

Minister of Industry and Energy

Korea Electric Power Corporation

March 20, 2018

April 19, 2018

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs, including the cost of supplementary participation.

On June 10, 2015, the Defendant confirmed that the part regarding the section Nos. 154kV K K K KK line construction tower L or M in the execution plan for electric source development business against the Intervenor joining the Defendant is null and void.

1. Details of the disposition;

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) established an implementation plan of the instant project to promote electric power resource development projects (154kV KKK construction projects, hereinafter referred to as the “instant project”) with the aim of preparing for the increase in the demand of electric power and providing stable electric power in the area of the strengthened military forces, and applying for the approval of the said implementation plan to the Defendant, with the aim of building electric power resource development projects (154kV KK construction projects, hereinafter referred to as the “instant project”).

B. On June 4, 2015, the Defendant approved the implementation plan of the instant project pursuant to Article 5(1) of the former Electric Source Development Promotion Act (amended by Act No. 13862, Jan. 27, 2016; hereinafter the same) and publicly notified the details of approval pursuant to Article 5(5) of the same Act on June 10, 2015 (Notice of the Ministry of Trade, Industry and Energy; hereinafter “instant disposition”).

C. The Plaintiffs are the owners or residents of the land, which is the planned site for the power transmission tower number L or M section (hereinafter “instant section”) to be installed according to the instant project, or the land located in the adjacent strengthening Sri (hereinafter “Sri”) located adjacent thereto.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Intervenor did not undergo the procedures for hearing opinions under Article 5-2(1) and (2) of the former Electric Source Development Promotion Act, Article 18-4(1) and (3) of the Enforcement Decree of the same Act, and the procedures for prior notice of dispositions under Article 21(1) of the Administrative Procedures Act in the course of obtaining approval of the implementation plan for the instant project. Therefore,

2) The implementation plan of the instant project drawn up by the Intervenor was to install T-L transmission towers in the farmland zone between U and V. However, W Transmission towers are installed in the field of X owned by the Plaintiff, and the Y transmission towers are installed in the camping site operated by Plaintiff C, and M transmission towers are set up in AA located in the ridge of V. However, there are a large number of houses and dry fields between L-Y transmission towers and the field of dry field, and the camping site is operated from L transmission towers to M transmission towers. If the length of transmission towers is somewhat increased, it is possible to set up two transmission towers in the sections from L transmission towers to M transmission towers, and in fact, it is possible for the Intervenor to go through V decline by avoiding a house or dry field, even if the length of the transmission lines increases, so that the Intervenor’s application for the disposition of this case may not be significantly affected by the Intervenor’s deviation and abuse of discretion.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether Article 5-2(1) and (2) of the former Electric Source Development Promotion Act and Article 21(1) of the Administrative Procedures Act are violated

A) Article 5-2(1) of the former Electric Source Development Promotion Act provides that an electric source developer shall, where he/she intends to obtain approval or approval for modification of an execution plan, hear the opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of a project implementation plan through inspection and briefing sessions before applying for approval or approval for modification, except for the exceptions prescribed in subparagraphs 1 through 4, and Article 5-2(2) of the same Act provides that an electric source developer shall reflect the opinions of the residents, etc. heard pursuant to paragraph (1) in the implementation plan if deemed reasonable, and Article 5-2(3) of the same Act provides that matters necessary for the methods

Accordingly, Article 18(1) through (3) of the former Enforcement Decree of the Electric Power Source Development Promotion Act (amended by Act No. 13862, Jan. 27, 2016; hereinafter the same) provides that where an electric power resource developer intends to hear the opinions of residents, etc., he/she shall submit the outline of electric power resource development business, the location and size of the electric power resource development business area, etc. to the head of the Si/Gun/Gu having jurisdiction over the relevant electric power resource development business area, and the head of the competent Si/Gun/Gu shall publicly announce the outline of the electric power resource development business, the inspection period and place of inspection of the project plan, the date and place of holding the briefing session, etc. at least once in daily newspapers, respectively, and the residents, etc. shall be allowed to peruse the project plan. Article 18-4(1) and (3) of the Enforcement Decree of the same Act provides that an electric power resource developer shall hold a briefing session to hear the opinions of residents, etc. pursuant to Article 5-2(1) of the Act.

B) According to the evidence Nos. 5 through 10, the intervenor prepared a project implementation plan of the instant case on July 9, 2013 and submitted it to the reinforced Gun. On July 11, 2013, and July 12, 2013, the reinforced Gun explicitly stated that the intervenor may submit his/her opinion using the place of inspection, inspection period, and submission form of residents' opinions while publishing the public inspection and presentation of the project implementation plan of the instant case to the AD Press and the AE Press on July 12, 2013, and the Internet homepage of the reinforced Gun Office also announced it for 20 days from July 12, 2013 to July 31, 2013; the intervenor prepared the residents' opinions on the project implementation plan of the instant case on July 16, 2013; and the intervenor's opinions on the implementation plan of the instant case on July 17, 2013; and the fact that the intervenor held the residents' opinions on the implementation plan of the instant case on July 19, etc.

According to the above facts, an intervenor shall be deemed to have implemented all the procedures for public announcement of a project implementation plan, public announcement of a briefing session, holding of a briefing session, and hearing opinions of residents, etc. as stipulated in Article 5-2 (1) and (2) of the former Electric Source Development Promotion Act, Article 18 (1) through (3), Article 18-4 (1) and (3) of the Enforcement Decree of the same Act.

C) Meanwhile, Article 2 subparag. 4 (a) of the Administrative Procedures Act provides that "the party to the Administrative Procedures Act is directly the party to the disposition of an administrative agency" and Article 5 subparag. 1, 2, and (5) of the Electric Power Source Development Promotion Act provides that where the defendant approves an execution plan for electric power resource development business or approves the modification thereof, it shall be subject to the public notice, and the summary of electric power resource development business area and the location and size of the electric power resource development business area shall be accessible to the general public. In full view of the above, the instant disposition that approved the execution plan of the instant case is not subject to prior notice under Article 21(1) of the Administrative Procedures Act or disposition that is subject to hearing of opinions under Article 22(3) of the Administrative Procedures Act (see Supreme Court Decision 2007Du1767, Jun. 12, 2008). The plaintiffs' assertion that the instant disposition was unlawful because it did

D) The plaintiffs' assertion that procedural errors exist in the disposition of this case is without merit.

2) Whether the discretion is deviates or abused

The act of installing electric power resource facilities according to the detailed plan for the electric power resource development business based on the government's basic plan for the supply and demand of electricity is a kind of administrative plan that is executed based on professional and technical judgment. The administrative subject is relatively broad freedom in formulating and determining a specific administrative plan, but there is a limitation that the freedom of formation, which the administrative subject has, is not unlimited but limited to the public interest and private interest, as well as the legitimate comparison between the public interest and private interest (see, e.g., Supreme Court Decision 96Nu8567, Nov. 29, 196). However, inasmuch as the administrative subject necessarily guarantees the private interest of a specific person, it is not legitimate to determine the administrative plan in such a way that it is recognized that the reasonableness of the balance of profits and the purpose of determining the administrative plan is within the scope of the planning discretion, the administrative plan decision should be legitimate. In addition, in order for the administrative disposition to be null and void, the administrative disposition should be unlawful, and it should be objectively and objectively justified as the reason for illegality.

According to the overall purport of evidence Nos. 11-1 through 3, Eul evidence Nos. 15, 16, and 17, the Intervenor started design services for the selection of the site of the instant project from September 2009 and organized the Location Selection Committee around October 2009. From March 30, 2010 to February 17, 201, the Intervenor held a meeting of the Location Selection Committee including field answers and confirmed the same transmission line as the instant project implementation plan through the process of selecting the optimal progress by utilizing the latest technology and advanced evaluation techniques. The instant section included in the power transmission line as above is deemed to have been installed in the existing transmission line (65k Qc transformation stations and power transmission lines) and to have been installed in the outer area of the village rather than the existing route, but, in order for the Plaintiffs to change the section of the instant case, it is recognized that the area was located later than the existing transmission line to be located in the area of the instant case.

According to the facts acknowledged above, the intervenor appears to have included the instant section in the business transmission line, referring to the opinion of the latest technology and experts, and the project of this case intends to install the transmission line to increase the capacity of the existing transmission and transformation facilities for the purpose of preparing for the increase in demand for power in the area where the reinforcement military service is to be performed, so long as the existing transmission line has already existed in the vicinity of the said section, the location of the existing transmission line does not change, and the degree of the infringement does not go to be somewhat different, and the strengthening area is excluded from the area of the instant area due to the change in the situation that the designation of the hot spring Protection Zone is designated, so the defendant cannot be deemed to have discriminated against the plaintiffs. Since the instant disposition constitutes an administrative plan decision, and thus, it can be deemed legitimate within the scope of the planning discretion so that the reasonableness and purpose of balancing can be recognized, in particular, to invalidate the instant disposition, significant and obvious grounds exist. In light of the above circumstances, the defendant's selection of the instant section and the instant disposition.

It does not seem that it is difficult.

The disposition of this case is legitimate, and the plaintiffs' assertion that the disposition of this case has a deviation or abuse of discretionary power is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

presiding judge, judge Park Jong-yang

Judges Kim Gin-A

Judges Choi Jae-in

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.