2015Guhap10735 Action for confirmation of residence in the affected area

A

B Group B

August 27, 2015

September 17, 2015

1. Ascertainment that the Plaintiff is a resident in the affected neighboring area of D, a waste disposal facility located in C. 2. Costs of lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. On December 12, 2006, the Defendant started waste disposal facilities (hereinafter “instant facilities”) under the former Act on Promotion of the Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 13170, Feb. 3, 2015; hereinafter “former Waste Promotion Act”), and completed the construction on December 12, 2006, and used the instant facilities from December 10, 2007. (b) According to Articles 17, 21, and 22 of the former Waste Facilities Promotion Act, the agency installing waste disposal facilities should determine and publicly notify the neighboring areas (hereinafter “the neighboring areas”) affected the environment due to the installation and operation of waste disposal facilities, and shall create the funds for the neighboring areas to support residents in the neighboring areas to improve their income and welfare, and the Defendant shall use the affected area under Article 17 of the former Enforcement Decree of the Act on the Promotion of Residents Support and its neighboring Areas (hereinafter “Act No. 1971, Jul. 17, 2007”).

(a) The location and effective period of the area under direct influence of the surrounding area; The area and indirect impact of the D site in C: 8 village-E (four villages): within a radius of 2 km from the center of D: 1 E -4 Gu (F, G, H, 1)-J (3 villages): J 1-3 Gu (K, L, M)-Gu N Chang-gun. The effective period of designation shall be December 31, 2087.

C. Meanwhile, pursuant to Article 17-2 of the former Waste Facilities Promotion Act, 11 residents support council for the neighboring areas (hereinafter referred to as the "Council of this case") was organized, including the representative of eight villages in the area of indirect influence, the Gun Council members of B, and two professors within the area of indirect influence. The Council of this case prepared operating rules for the requirements, etc. for payment of the Resident Support Fund (hereinafter referred to as the "Operation Rules of this case"), and the main contents are as follows.

D. The purpose of Article 2 (Purpose) of the Operating Rules of the Residents Support Consultative Body for Residents is to prescribe matters necessary for the formation and operation of the Residents Support Consultative Body for Residents, which is the representative body for the neighboring local residents under Article 17 (2) of the Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter referred to as the "Act") and Article 18 of the Enforcement Decree, and to promote the welfare of the residents in the surrounding areas.The term "area under the surrounding influence" means the area determined and announced by the head of the Gun as the surrounding areas that may be affected environmentally due to the installation and operation of D under Article 18 of the Act.

D. The Resident Support Fund that was allocated by the Defendant to the Ndong-gun Village in the Gosi-gun of North Korea, which was designated as an indirect impact zone that may be affected environmentally due to the installation and operation of the instant facilities, 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 in the Ndong-gun will be granted to the Ndong-gun through Gosi-gun, and Ndong should form a legal entity that consists of the village residents and promote solar energy projects.”

E. The Defendant notified the council of this case of the result of the foregoing conference, notified the council of this case of the implementation of the Support Project. Around that time, on December 26, 2014, the Defendant paid KRW 1 billion to Go Chang-gun by remitting charges among local governments to promote the N Village Support Project, and on December 29, 2014, Go Chang-gun paid KRW 1 billion to the account of the representative of N Chang-gun’s residents. (f) From January 1, 1993, the Plaintiff was able to participate in the Nriwon-gun’s Housing (hereinafter “the instant Housing”) located in the Nriwon-gun’s Housing located in the Nriwon-gun’s Multipurpose (hereinafter “Nriwon”) and was receiving new illness treatment by being hospitalized in the hospital from around November 201 to the present, 201, the Nriwon-gun’s meeting cannot be held by the Plaintiff from around 20, 2011 to 3rd, the Plaintiff could not participate in the existing Nriwon’s Housing.

According to the result of the conference of the above N Village Residents Council, the subjects eligible to participate in solar energy projects (hereinafter referred to as the "instant projects"), which are resident support projects conducted by the defendant against N Village, were determined to be ten households, and the Plaintiff was excluded from those eligible to participate in the instant projects.

[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

The Plaintiff is excluded from a person eligible to participate in the instant project without justifiable grounds even though the Plaintiff is a resident in the N Village, which is the affected neighboring area designated and publicly notified following the installation of the instant facilities, and thus, it 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 under the former Construction Promotion Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination on the defense prior to the merits

A. Summary of the defense prior to the merits

The Defendant transferred KRW 1 billion to Go Chang-gun, and completed the Support of Residents to Go Chang-gun, and the Defendant’s support of residents in the form of a joint project with respect to the residents in the sphere of indirect influence is not a direct subsidy to the individual residents within the sphere of indirect influence. Thus, the Plaintiff’s support through the Residents Support Fund should pass through the instant consultative body in order to receive the support through the Residents Support Fund. Therefore, even though the Defendant has a means of direct remedy by filing a lawsuit against Go Chang-gun and the consultative body on the matter of this case to confirm that the residents are eligible for the support of residents or claiming the Resident Support Fund against N Chang-gun, a person eligible for the support of residents, there is no interest in confirmation contrary to the nature of confirmation, because it is not a final solution of dispute, and the Defendant does not have the authority to decide whether individual residents are eligible for the support of residents in the affected neighboring areas, such as the instant project. Therefore, the Defendant does not have the authority to file the instant lawsuit.

B. Determination

The purpose of the former Waste Facilities Promotion Act is to facilitate the installation of waste disposal facilities and the improvement of the quality of people's lives by promoting the securing of sites for waste disposal facilities and providing support to residents in their surrounding areas. Under the above Act, an agency installing waste disposal facilities is "the Minister of Environment or the head of a local government who intends to install and operate waste disposal facilities that meet certain requirements" and an agency installing waste disposal facilities shall create a residents support fund to support residents in the surrounding areas. The types of support projects, standards and methods of support, etc. shall be prescribed by Presidential Decree (Articles 1, 2 subparagraph 2 (a), 21 (1), and 22 (4) of the former Waste Facilities Promotion Act). According to the relevant provisions such as Articles 26 and 27 (1) and (2) of the Enforcement Decree of the Waste Facilities Promotion Act under delegation of the above Act, an agency installing waste disposal facilities shall operate and manage the residents support fund in consideration of the conditions of the area and the scale of support projects for each household in the case of funds to provide under the above Act, or may directly provide support to residents by type and method of support.

In light of the above relevant provisions, the subject who determines and announces the affected neighboring areas, establishes the Residents Support Fund, and provides support for the residents support project, such as the operation and management of the Residents Support Fund, shall be the defendant who is an agency installing the waste disposal facilities. If the resident support project is implemented in the form of a joint project without any indirect support by household for the residents within the affected area like the instant project, the plaintiff may file a lawsuit against the defendant to confirm that he/she is a resident of the affected adjacent areas that he/she can participate in the instant project, and such lawsuit may be an effective and appropriate means to resolve uncertainty and danger in the Plaintiff’s rights or legal status (the consultative body of this case is only possible for the defendant, who is an agency installing the waste disposal facilities, to hold consultations and have direct decision-making rights, and even if the defendant transferred the subsidy of KRW 1 billion to the Neo Chang-gun, this is merely a delivery of the funds to the N Chang-gun by the defendant to the N Chang-gun, and it cannot be a means to resolve the plaintiff’s existing risk and legal status of the establishment.

Therefore, the defendant's defense prior to the merits is without merit.

4. Judgment on the merits

A. Article 3 subparagraph 2 of the Operational Rule of this case provides that "resident or a household in the affected neighboring area who has been residing in the affected neighboring area and has been actually residing in the affected area," and Article 28 (1) provides that "where residents in the affected adjacent area intend to obtain support for residents, they shall be registered in the Resident Support Consultative Body through the member representing the residents in the affected area or the head of the Ri, and where the residents registered under paragraph (1) of the same Article temporarily change their domicile or actual domicile to the affected adjacent area outside of the affected area due to unavoidable reasons, they shall report the same as the registration procedures if they change their domicile or actual domicile to the affected adjacent area for more than one month. In this case, the registration shall be cancelled and the registration period before the change to the area outside the affected area shall not be recognized." Article 29 provides that "resident or a household support project by the affected area shall be limited to the residents or households for which six months have passed after the registration under Article 28 at the time of the implementation of the project.

Considering the details of the payment process of the Resident Support Fund as seen earlier, the determination of persons eligible for support, and the details of the above support criteria, the requirements for the actual resident who is the person eligible for support of the instant project under the above operating regulations mean that at the time of December 2014 (the date when the Defendant notifies the Consultative Body of the implementation of the Support Project) (the date when the Defendant notifies the Consultative Body of the implementation of the Support Project) and that the N Village has to have the basis for living in the N Village. Even if the Defendant temporarily stayed in another place for the purpose of treating a new disease, if it does not reach the extent that he/she transferred his/her living place or dwelling in the previous place of residence, such as household tools, etc., without considering the aforementioned support requirements (see, e.g., Supreme Court Decision 2011Da37483, Mar.

B. As to the instant case, the Plaintiff, from January 1, 1993, resided after filing a move-in report on the instant house from around January 201 to around January 201, and was hospitalized in a convalescent hospital, and the Defendant notified the instant consultative body around December 2014 that he/she performed the instant project in the form of carrying out the instant project in the N Village. As seen earlier, in full view of the purport of the entire pleadings in the statement No. 11, the Plaintiff may recognize the fact that the Plaintiff was registered with the consultative body pursuant to Article 28 of the Operational Rule as of the date of closing the argument in the instant case.

The following circumstances revealed by the above facts, namely, the Plaintiff appears to have failed to live in the instant housing from January 201, but appears to have received a new illness treatment in a convalescent hospital due to aging. If so, rather than a complete director from the instant housing, it appears that the Plaintiff temporarily left the instant housing to stay in a convalescent hospital for the purpose of new illness treatment, etc., and whether the Plaintiff sold the instant housing or attempted to sell the instant housing, is an important factor in determining whether or not a director has been in the meaning of transferring the place of living. However, there is no trace of the Plaintiff’s disposal of the instant housing and moving the place of living, and the Plaintiff is registered in the instant consultative body pursuant to Article 28 of the Operating Rules, and the registration is cancelled pursuant to the proviso of Article 28(2) of the Operating Rules (the registration is cancelled when the period of de facto residence exceeds one month in a neighboring area outside the neighboring neighboring areas).

In full view of the fact that the registration has not been cancelled, it is reasonable to deem that the Plaintiff was a resident who actually resides in the instant house from January 1, 1993 to the present date and satisfies the requirements for support under the operating rules of this case.

C. Therefore, the Plaintiff constitutes a resident of the affected neighboring area as stipulated in the instant operational regulations, and as long as the Defendant contests this, there is a benefit to seek confirmation.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge, the Park Judge;

Judge Senior Professor

Support for Judges

1) According to the Defendant’s preparatory brief (3 and 4 pages) dated August 26, 2015, the instant operational rules are as follows. The Defendant’s notification of the implementation of the Support Project to the Consultative Body.

The term "at the time of the implementation of the resident support program" referred to in Article 29 means "at the time of the implementation

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.