(영문) 광주고등법원 2016.8.18.선고 2015누6919 판결

A. On October 18, 2004, the head of B/Gun (hereinafter referred to as “Defendant”) who is the representative of the Defendant (hereinafter referred to as “Defendant”) shall start the “D” (hereinafter referred to as “the instant facility”) which is a waste disposal facility provided by the former Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 13170, Feb. 3, 2015; hereinafter referred to as the “former Waste Facilities Promotion Act”) and start the construction of the “D” (hereinafter referred to as “the instant facility”).

12. The completion was completed on October 12, 2007 and used the instant facilities from October 12, 2007.

B. According to Articles 17, 21, and 22 of the former Waste Facilities Promotion Act, an agency installing waste disposal facilities shall determine and publicly announce the neighboring areas that may be affected environmentally due to the installation and operation of waste disposal facilities (hereinafter “the affected neighboring areas”), and shall use them for projects to support the improvement of income and the promotion of welfare of residents in the affected areas by creating the Resident Support Fund to support residents in the affected areas. The Defendant decided and publicly announced the affected areas pursuant to Article 17 of the former Waste Facilities Promotion Act and Article 17 of the Enforcement Decree of the Act on the Promotion of Installation of Waste Facilities and the Assistance, etc. to Their Environs (hereinafter “Enforcement Decree of the Waste Facilities Promotion Act”) as follows:

The location and the designated period of the area under the influence of ○○. Direct influence: D site located in C: Over 2 km in radius; Over 4 km in radius; E (4 villages); E-1-Gu (F, G, H, I)-J (three villages): J 1-Gu (K, L, M)-Gu (three villages); and the period of designation is December 31, 2087. Meanwhile, under Article 17-2 of the former Waste Facilities Promotion Act, eight residents of the area under indirect influence, and 11-Gu residents support consultative body (hereinafter referred to as the "consultative body") under the name of the defendant's military council and two professors, etc.; and the following operational regulations were formulated for consultation on resident support projects.

D. The Resident Support Fund that the Defendant allocated to N villages was KRW 1 billion, but the instant consultative body held extraordinary meetings on December 23, 2013, and decided to the effect that “1 billion won is to be granted to N Village through Go Chang-gun, and N Village should establish a corporation that consists of community residents and promote solar energy projects (hereinafter “instant project”).

E. Around that time, the Defendant notified the instant consultative body of the result of the instant conference, and notified the instant consultative body of the implementation of the instant project. On December 26, 2014, the Defendant paid KRW 1 billion by remitting charges among local governments for the implementation of the New Village Support Project to Go Chang-gun. On December 29, 2014, Go Chang-gun paid KRW 1 billion to the account of the representative of N Village residents.

F. On January 1, 1993, the Plaintiff filed a move-in report on the housing located in the Go Chang-gun P (hereinafter “instant housing”) in the Go Chang-gun P around that time, and was hospitalized in the N community from around that time to around that time, and was receiving treatment after being hospitalized in the convalescent hospital from around 2011.

On November 5, 2014, the N Village Residents Council held a meeting on November 5, 201, and decided to the effect that, since the Plaintiff was hospitalized in a convalescent hospital from around January 201 to does not reside in the instant housing, it cannot be viewed as a resident in the affected neighboring area that may participate in resident support projects pursuant to Articles 3 subparag. 2, 28, and 29 of the Operating Rules, N Village cannot participate in the instant project, and that the total of 10 households adding Q and R to the eight households recognized as a person eligible for support shall not participate in the instant project (the method in which one household becomes a shareholder of the corporation operating the instant project).

G. Meanwhile, the Plaintiff died on January 10, 2016, while continuing the appellate trial. Of the Plaintiff’s inheritors, S filed an application for the acceptance of the lawsuit with this court on June 22, 2016, and T, U, and V respectively, on July 8, 2016, this Court decided to dismiss all the above applications for the acceptance of the lawsuit at the third date for pleading ( July 14, 2016) and notified the Plaintiff’s agent of the said decision.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 through 4, 12, the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

Although the Plaintiff is a resident in the N Village, which is the affected neighboring area designated and publicly notified following the installation and operation of the instant facilities, the Plaintiff is excluded from the support stand box, without any justifiable reason, so the Plaintiff seeks confirmation from the Defendant, who is an agency installing waste disposal facilities, who resides in the affected neighboring area where the Plaintiff may receive support pursuant to the former Waste Facilities Promotion Act.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

3. Judgment on whether to terminate the lawsuit

A. The defendant asserts that the plaintiff died during the appellate trial, and that the plaintiff's status as a resident within the surrounding influence area is not subject to inheritance as a continuous right, and therefore, the lawsuit of this case is terminated upon the plaintiff's death.

2) As to this, the Plaintiff’s legal representative asserts that the lawsuit in this case is a party suit in the process of an administrative litigation, and that the status of residents in the area affected by the Plaintiff is the premise of property rights, and that the rights already incurred during the Plaintiff’s existence are inherited to the Plaintiff’s heir, and thus, the lawsuit in this case is not terminated upon the Plaintiff’s death

B. Determination

Since the Administrative Litigation Act does not have any provision concerning the succession of a lawsuit due to the death of a party, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the succession of a lawsuit due to the death of a party in an administrative litigation (see Article 8(2) of the Administrative Litigation Act). If a party is dead, if the subject matter of a lawsuit is not a subject matter of inheritance as a right of binding upon the death of a party, the lawsuit shall not be succeeded to by the inheritor (see Supreme Court Decision 2003Da427, Apr. 27, 200

Supreme Court Decision 64381; Supreme Court Decision 2005Du15748 Decided July 26, 2007.

In light of the above legal principles, it is necessary to establish a basis for living in the affected area in order to be eligible for support of the residents in the affected area in light of the following circumstances, i.e., determination and public notification of the affected area by the waste disposal facility installation and operation of the waste disposal facility, i.e., compensation for the benefits of residents living in the affected area without any environmental infringement, i., the benefits of residents living in the affected area. ② Articles 3(2), 28, and 29 of the Operational Rule also require the actual residing in the affected area for the above purpose (the plaintiff died on January 10, 2016, which is before the closing date of the argument of this case). Thus, it cannot be deemed that the plaintiff's right to support the affected area was not directly affected by the residents support fund in the affected area under Article 27(2) of the Enforcement Decree of the Waste Management Act.

4. Conclusion

Therefore, the judgment of the court of first instance is unfair in conclusion, and it is revoked, and the declaration of the completion of the lawsuit of this case is made, and the litigation costs after the completion of the lawsuit shall be determined to be borne by the plaintiff as the heir, who applied for the acceptance of the lawsuit, and it is so decided as per Disposition.