2010Du20423 Invalidity of the approval of a military facility project implementation plan

As shown in the attached list of plaintiffs.

[Defendant-Appellant]

The Minister of National Defense

Jeonju City

대표자 시장 ■■■

Attorney omitted

Seoul High Court Decision 2009Nu34831 Decided August 20, 2010

July 5, 2012

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the defendant's ground of appeal No. 6, where a project implementer intends to implement a project prescribed by the Presidential Decree among national defense and military facility projects (amended by Act No. 8446 of May 17, 2007; hereinafter "the former National Defense Project Act"), the project implementer shall prepare an implementation plan and obtain approval from the Minister of National Defense as prescribed by the Presidential Decree (the first sentence of Article 4 (1)); where the Minister of National Defense intends to approve an implementation plan under Article 4, he/she shall consult with the head of the relevant central administrative agency and the heads of local governments (the main sentence of Article 5 (1)); where the Minister of National Defense approves an implementation plan, he/she shall notify it without delay (Article 5 (2)); in applying the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, approval of the implementation plan shall be deemed project approval under Article 20 (1) of the same Act; and the public notice of approval of the implementation plan shall be deemed public notice under Article 22 (1) and (2) of the same Act.

According to the above provisions, a project implementer of a national defense and military facility project can expropriate or use land, etc. within the project area upon approval of an implementation plan, and can implement the national defense and military facility project in question. Thus, the owner of the land, etc. within the project area concerned has a legal interest in seeking nullification or revocation of the approval of the implementation plan.

According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the evidence adopted by the lower court. Although following the instant implementation plan’s approval disposition, the lower court, following the process of environmental impact assessment, consultation with the competent authority, etc., prepared an implementation plan for the instant ○○○○○○○○○○○○○ Relocation Project, and applied for the approval of the implementation plan to the Defendant. The Defendant approved the implementation plan on May 18, 2010 and May 20, 2010.

Even if the re-disposition of this case was publicly announced, the re-disposition of this case is a new disposition separate from the original approval disposition of the implementation plan of this case, and there is no explicit revocation of the Defendant’s approval disposition of the implementation plan of this case. In light of the various circumstances, the intervenor, etc., who accepted a considerable portion of the project area of this case according to the approval disposition of the implementation plan of this case, had a legal interest in seeking nullification of the approval disposition of the implementation plan of this case.

In light of the above relevant statutes, legal principles, and records, such determination by the court below is just, and there is no error in the misapprehension of legal principles as to legal interests as alleged in the ground of appeal.

2. According to the Defendant’s grounds of appeal Nos. 1 through 3 and the Intervenor’s grounds of appeal Nos. 1 and 2, of the Framework Act on Environmental Policy (amended by Act No. 8471 of May 17, 2007; hereinafter the same shall apply), in establishing an administrative plan or developing a development project (referring to a development project for which the establishment of an administrative plan is not required; hereinafter the same shall apply) that affects the environment, the Minister of National Defense requires an advance review of the feasibility of environmental aspects, including the establishment and analysis of alternative plans for the relevant administrative plan or development project (Article 3 subparag. 7), and Article 25-2(2) of the same Act, and Article 25-1(1) of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 20975 of Aug. 26, 2008) (amended by Presidential Decree No. 20975) (hereinafter referred to as “permission, etc.”), a prior consultation on the implementation plan of national defense project under Article 7(1) of the former Enforcement Decree

Under the former Act on Assessment of Impacts of Works on Environment, Traffic, and Disasters (amended by Act No. 9037 of March 28, 2008; hereinafter referred to as the "Act"), separate from such preliminary examination of environmental feasibility, an assessment is required to estimate and analyze harmful impacts arising from the implementation of a project subject to environmental impact assessment on the natural environment, living environment, society, and economic environment, and to devise measures therefor (Article 2 subparagraph 1 (a)), and Article 17 of the Act provides for the period of approval, authorization, permission, license, or decision, etc. (hereinafter referred to as the "approval, etc.") to the head of the agency subject to approval, etc. (hereinafter referred to as the "head of the approving agency") and the head of the approving agency (hereinafter referred to as the "head of the approving agency and the head of the approving agency") who need not obtain approval, etc., and (hereinafter referred to as the "head of the approving agency and the head of the approving agency" under the provisions of paragraph (1) and paragraph (2).

According to such delegation, the Enforcement Decree of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc.(208.12.

24. The main sentence of Article 14(1) of the Enforcement Decree of the Environmental Impact Assessment Act (amended by Presidential Decree No. 20077, Jun. 1, 2007; hereinafter “Enforcement Decree”) provides that “Where a project executor required to obtain approval, etc. under Article 17(1) of the Act submits an assessment report to the head of the approving agency pursuant to Article 17(1) of the Act, the time when the head of approving agency shall make a request for consultation with the head of approving agency on the assessment report in accordance with Article 17(2) of the Act, the time when the head of approving agency shall make a request for consultation with the head of approving agency shall be as specified in attached Table 1, and [Attachment Table 1] subparagraph 1(p)(1) of the attached Table 1 of the Act on the Projects of National Defense and Military Installations is more than 30,000 square meters in the project area among national defense and military installations projects under Article 2(2) of the Enforcement Decree of the Act, the time for submitting an assessment report and the timing for consultation.”

Meanwhile, according to Article 21-3(3) of the former Construction Technology Management Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same), matters necessary for the contents and methods of the implementation process of construction works shall be prescribed by Presidential Decree. Pursuant to the main sentence of Article 38-4 of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 20927, Jul. 23, 2008; hereinafter the same), a contracting authority shall implement construction works in accordance with the process of examining the basic concept, feasibility, basic plan, construction work, basic design, basic design, surveying and ground ground survey, economic feasibility, etc., inspection and management of the execution state, management, completion, completion, follow-up evaluation, maintenance and management, except as otherwise expressly provided for in other Acts and subordinate statutes.

In light of the above-mentioned Framework Act on Environmental Policy, the former Framework Act on Environmental Policy, the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, etc., and the contents and system of the National Defense Project Act, it is reasonable to interpret that the former Framework Act on Environmental Policy and the former Act on Assessment of Impacts of Works on Environmental, Traffic, Disasters, etc. should be subject to prior examination of environmental impact and environmental impact assessment before the approval of the implementation plan for national defense and military installation projects under Article 4 of the former Act, not to require that the national defense and military installation projects under the National Defense Project Act undergo prior examination of environmental impact assessment and environmental impact assessment before the approval of the implementation plan, but to review the appropriateness and feasibility of location of the environmental side under the former Framework Act on Environmental Policy before the approval of the basic plan under the former Construction Technology Management Act, and to interpret that the implementation plan under Article 17(1) of the former Framework Act should be included in the specific process of approving or approving construction technology projects, including "the most specific process of approving or approving the implementation plan for construction technology prior to the approval of the plan."

As the Special Construction Technology Deliberation Committee is established under the Ministry of National Defense, matters concerning the design and construction including the basic design should be deliberated and resolved by the above committee. In light of the contents, form, and purport of the above related Acts and subordinate statutes, such as the administrative procedure corresponding to the approval, etc. as stipulated in Article 17(1) of the Act, which is an administrative procedure corresponding to the approval, etc. as stipulated in the Enforcement Decree of the instant case, prior to the approval of the basic design, the term "before the approval of the basic design" under the Enforcement Decree of the instant provision refers to the pre-approval of the basic design under Article 38-9 of the former Enforcement Decree of the Construction Technology Management Act, and it is not interpreted that the term "before the approval of the basic design" refers to the pre-approval of the implementation plan under the former Enforcement Decree of the Construction Technology Management Act (see Supreme Court en banc Decision 2011Du19239, Jul. 5, 2012).

On the other hand, in the case of national defense project and military installations project under the former National Defense Project Act, the prior examination of environmental feasibility and environmental impact assessment shall not be required prior to approval of the implementation plan under the former National Defense Project Act, but shall be conducted prior to approval of the basic plan under the former Construction Technology Management Act. Thus, even if the basic plan was not approved prior to approval of the basic plan, the approval of the implementation plan under the former National Defense Project Act shall not be deemed unlawful.

Nevertheless, the court below held that the approval disposition of the implementation plan of this case was unlawful on September 1, 2006 on the premise that the "before the approval of the basic plan of this case" means "B prior to the approval of the implementation plan of this case for the national defense and military installations projects of this case", on the premise that the intervenor did not conduct an environmental impact assessment prior to the approval of the implementation plan of this case, such as allowing the defendant to request consultation with the Minister of Environment before the approval of the implementation plan of this case, and on the premise that if the basic plan of this case was not approved before the approval of the implementation plan of this case, the approval disposition of the implementation plan of this case was not conducted on September 1, 2006 on the premise that the plan of this case was illegal even before the approval of the basic plan of this case was made. The court below erred by misapprehending the legal principles on the nature and peculiarity of the approval disposition

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the Intervenor, 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.

Justices Min Il-young

Justices Park Poe-young of the State.

Justices Shin Young-young

Justices Park Young-young