(영문) 대법원 2021.7.29. 선고 2015다221668 판결

Of the judgment below, the part concerning the claim for damages arising from infringement of the right to participate in administrative procedure is reversed, and this part of the case is remanded to Gwangju High

The appeal by the plaintiff (Appointed party) against the claim for damages caused by the infringement of environmental right and the infringement of safety right to access roads is dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the resident's right to participate in administrative procedures is recognized as liability for damages (the defendant's grounds of appeal)

A. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

(1) From August 2006, the Defendant established a waste treatment facility (hereinafter referred to as “the instant waste treatment facility”) in the area of Bosong-gun ( Address 2 omitted), Jeonsung-gun (hereinafter referred to as “the instant waste treatment facility”) from around August 24, 2006, and operated the instant waste treatment facility after filing a report on the commencement of use with the Jeonnam-do Governor around November 24, 2009. The Plaintiff (the appointed party; hereinafter referred to as the “Plaintiff, etc.”) and the appointed ○○○ (hereinafter referred to as the “Plaintiff, etc.”) reside in the village where approximately one point nine kilometers away from the instant waste reclamation site to the straight line.

(2) Around December 4, 2007, the Defendant applied for approval of the establishment of the instant waste reclamation site to the Jeonnam-do Governor. A working-level officer of Jeonnam-do demanded supplementation of relevant documents, such as the determination of the location selection plan, announcement, composition of the location selection committee, location determination and announcement, on the ground that the instant waste reclamation site constitutes a facility included in the subject matter of the site selection plan under the relevant laws and regulations.

(3) In relation to the instant waste landfill business, the Defendant received the recommendation notice by requesting the recommendation of two members of the Gun Council to organize the Committee for Selection of Location and the Resident Support Council. Nevertheless, the Defendant determined the location of the instant waste landfill on January 2, 2008 without entirely undergoing the procedures for the establishment of the Location Selection Committee and the location selection, etc., and determined the period for the perusal of the relevant drawings and the period for submitting residents’ opinions from January 2, 2008 to February 1, 2008.

(4) After February 208, Nonparty 1, the Defendant’s public official, forged relevant documents, such as the “Seongsung-gun’s General Waste Treatment Facilities Selection Plan and Public Notice,” the “resident representative’s recommendation recommended experts constituting the site selection committee,” the “public notice of the meeting of the committee for the selection of site location for rural waste treatment facilities, and the minutes of the site selection committee. On February 14, 2008, the Defendant filed an application for approval for the installation of the instant waste reclamation site again with the submission of forged documents with the Do governor, Jeonnam-do around February 20, 2008. The Do governor approved the installation of the instant waste reclamation site with the Defendant’s notification that approved the construction plan of the instant waste reclamation site.

(5) Nonparty 1 was indicted on charges of forging an official document and convicted, and the judgment became final and conclusive.

(6) The Plaintiff et al. did not perform administrative procedures to be followed in the construction process of the instant waste reclamation site, such as the site selection committee and the organization of the residents support council and the determination and announcement of the affected area of waste disposal facilities, and infringed upon the Plaintiff et al.’s right to participate in the administrative procedure. The Plaintiff et al. filed a claim for consolation money against the Defendant on the ground that the Plaintiff et al. suffered emotional distress by violating the Plaintiff et al.’s right

B. The lower judgment and the key issue

For the following reasons, the lower court accepted the Plaintiff’s assertion and determined that the Defendant was obligated to pay consolation money to the Plaintiff, etc.. The relevant statutes applicable to the instant case are to directly protect the interests of each resident, and the Defendant, a resident in the area where the instant waste landfill was installed, excluded entirely the opportunity for the Plaintiff, etc. to participate in the process of determining the location. The public official in charge of the Defendant incurred emotional distress to the Plaintiff, etc. by forging relevant official documents, etc., as the Defendant had followed all

The issue is whether the defendant is liable to compensate for mental damage pursuant to Article 2 of the State Compensation Act for the reason that the public official of the defendant, who is a local government, committed an illegal act without going through the procedures for collecting residents' opinions prescribed by relevant statutes in relation to the construction of the waste landfill of this case.

(c) Whether liability for damages caused by residents' infringement on their right to participate in administrative procedures is recognized and the scope of recognition thereof;

(1) The purpose of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter “Waste Facilities Promotion Act”) is to facilitate the installation of waste disposal facilities and improve the quality of the people’s living by promoting the welfare of the residents through the promotion of securing the site for waste disposal facilities and the support for residents in their surrounding areas (Article 1). Article 9(3) of the Waste Facilities Promotion Act provides that “Where an agency installing waste disposal facilities publicly announces a plan to select the site for waste disposal facilities, it shall establish a site selection committee in which the representative of residents participate without delay and shall select the site for waste disposal facilities.” According to Article 7 [Attachment 1] of the former Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Presidential Decree No. 21543, Jun. 16, 2009; hereinafter “Enforcement Decree”), the representative of residents shall be selected at the relevant Si/Gun/Gu Council from among residents in the relevant Si/Gun/Gu where the relevant waste disposal facilities are located, including the representative of residents, and shall recommend the opinions of the selection committee.

The Location Selection Committee is a decision-making body that selects the location of waste disposal facilities. The purpose of the Location Selection Committee is to prevent the infringement of the residents' rights in front of local governments or by the light decision of the representative of a small number of residents, and to ensure democratization and trust in administration, by allowing the residents to express their opinions in the Location Selection Committee, including the representative of residents in a certain number of units and the experts recommended by the representative of residents, and to submit their opinions to the Location Selection Committee (see, e.g., Supreme Court Decisions 2003Du7118, Nov. 14, 2003; 2006Du20150, Apr. 12, 2007).

As such, the actual participation of residents is guaranteed from the selection stage of waste disposal facilities, and after the designation of the location of waste disposal facilities has been publicly announced and the installation plan of waste disposal facilities has been publicly announced, the affected area is determined to be affected environmentally due to the installation and operation of waste disposal facilities. In the process, the opportunity for participation of residents is guaranteed through the organization and activities of the Resident Support Council (Article 17

(2) In the process of implementing public works, the State or local governments may exercise procedural rights prescribed by statutes, such as participation in administrative procedures through presentation of opinions, and have an opportunity to protect private interests, such as environmental rights and property rights. However, the statutory provisions pertaining to residents’ participation in administrative procedures are to guarantee residents’ opportunity to reflect their intentions and interests, ensure fairness, transparency and reliability in administration, and to protect citizens’ rights and interests, and do not have the nature of private rights. As such, the right to participate in administrative procedures is more meaningful as a means of public law to ensure fairness and appropriateness of administration rather than having an independent meaning, and thus, it cannot be readily concluded that the State or local governments are obliged to compensate for mental damage immediately solely on the ground that the residents were temporarily infringed on the right to participate in administrative procedures without considering whether the relevant administrative disposition was established, invalidated, or revoked.

In light of the nature, contents, etc. of rights in administrative procedures, even if the State or a local government has failed to guarantee procedural rights, such as the submission of opinions by residents in the course of the process of the process of the process of the process of the administrative procedure, where the procedure is followed after correction thereof, where the disposition does not reach the stage of the administrative procedure, or where the disposition is revoked or revoked or withdrawn ex officio, etc., the residents are not entitled to compensate for mental suffering caused by infringement of procedural rights, barring special circumstances, since the purpose of protecting private interests, such as environmental rights or property rights, has been substantially achieved through the exercise of procedural rights, and barring special circumstances, the State or the local government is not obliged to compensate for damages caused by the infringement of procedural rights, barring special circumstances. In such cases, the State or the local government is liable to compensate for damages arising from the mental suffering. Whether there are special circumstances, and whether there are special circumstances should be comprehensive consideration of the purport of guaranteeing the right to participate in the administrative procedure, the details and degree of the infringement of the right to participate in the administrative procedure, and the progress of the relevant administrative procedure.

(3) Examining the following circumstances revealed according to the reasoning of the lower judgment and the record in light of the aforementioned legal doctrine, there is room to acknowledge special circumstances that the neighboring residents of the waste landfill of the instant case suffered emotional distress due to the Defendant’s illegal act, and even if the invalidity of the relevant administrative disposition was verified, there is still the mental pain of the residents.

(A) On May 31, 2018, after the construction of the instant waste reclamation site, a judgment was rendered to confirm the determination and public notice of the location of the instant waste reclamation site and the invalidity of the approval plan for the installation of the instant waste reclamation site on the grounds that defects that did not constitute the site selection committee under relevant statutes, including the Waste Facility Promotion Act, are significant and objectively apparent (Supreme Court Decision 2015Guhap912 Decided May 31, 2018). This judgment became final and conclusive without appeal by the parties.

(B) In light of the circumstances, etc. upon request of the Defendant to supplement the procedures, such as the composition of the Location Selection Committee, from the working-level staff of the Jeonnam-do, and to establish the Bosung Gun Council site location Selection Committee, it can be deemed that the Defendant’s public official, as a public official, has clearly recognized the fact that he/she should determine the location of the instant waste reclamation site through the organization and operation of the Location Selection Committee in which the representative of residents, etc. participated. Nevertheless, the Defendant’s public official, as a public official, excluded the process of site location selection through the establishment of the Location Selection Committee and the Committee, submitted the relevant documents to Jeonnam-do Governor to forge the relevant documents and submit the relevant documents to obtain approval for the establishment of the instant waste reclamation site. Such act by the Defendant’s public official is an act that is obviously attributable to excluding the residents of the relevant region from entirely giving rise to their intent and interest to the instant waste reclamation site.

(C) The instant waste reclamation site was installed and used from November 2009. However, the Defendant poorly operated the instant waste reclamation site, such as plastic materials, which were inflammable materials used to cover the reclaimed part under the roof of the instant waste reclamation site, which was caused by typhoons. However, even after the completion of the above roof restoration work, by neglecting the plastic materials and typines into the reclaimed part for a long time.

(4) However, the lower judgment that recognized the Defendant’s liability for damages against the Plaintiff, etc. is difficult to accept for the following reasons.

(A) The lower court determined that a series of acts by the Defendant’s residents of the affected adjacent areas entirely excluded the opportunity to participate in the process of determining the location, and establishing the instant waste reclamation site by forging relevant documents constitutes a tort, and that the time of tort was at least the time when the Defendant applied for approval of the installation of the instant waste reclamation site by forging relevant documents around February 14, 2008. Therefore, it is reasonable to view that the persons who suffered mental distress due to the Defendant’s tort were entitled to participate at least in the process of determining the location, but were deprived of the opportunity, and are limited to those who were residing in the affected adjacent areas at the time of the said tort.

(B) Generally, in a claim for damages arising from a tort, the burden of proving the causal relationship between the occurrence of damages and the harmful act and the occurrence of damages is borne by the claimant (see Supreme Court Decision 2012Da68613, Jul. 24, 2014). In the instant case where the Plaintiff, etc. is liable for damages to the Defendant on the grounds of infringement of the Plaintiff, etc.’s right to participate in administrative procedures, the fact that the Plaintiff, etc. was a local resident at the time of the decision to select the location of the

According to the records, the plaintiff et al. did not explicitly assert that the location of the instant waste landfill was determined and that they were residents of the relevant area at the time of applying for approval for the establishment of the landfill.

(5) Nevertheless, the lower court recognized the Defendant’s liability for damages arising from mental distress on the ground that the Plaintiff et al. was entirely excluded from the opportunity to participate in the process of determining the location of the instant waste reclamation site without examining and determining whether the Plaintiff et al. were residents of the relevant region at the time when the process of determining the location of the instant waste reclamation site was underway. In so doing, the lower court erred by misapprehending the legal doctrine on State liability due to the infringement of residents’ right to participate in the administrative procedure and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

2. Whether tort liability is recognized due to the infringement of environmental rights and the infringement of safety right to access roads (the Plaintiff’s ground of appeal)

The lower court rejected the Plaintiff et al.’s claim for damages compensation for this portion on the ground that there was no evidence supporting that the Defendant had caused specific and direct damage to the Plaintiff et al., even though the Defendant had poorly operated the instant waste reclamation site or the width of the access road entering the instant waste reclamation site was narrow and crack down.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment, etc. of tort, or omitting judgment, which affected the conclusion of the judgment

3. Conclusion

Without examining the grounds of appeal on the Plaintiff’s damages, the part on the claim for damages arising from the infringement of the right to participate in the administrative procedure among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal on the claim for damages arising from the infringement of environmental right and the right to participate in the access road is dismissed as it is without merit