(영문) 서울행정법원 2016.12.15. 선고 2016구합74743 판결

A. On June 8, 2016, the Plaintiff filed an application for permission with the Defendant for the electric power generation business with the following contents (hereinafter referred to as the “electric power generation business in which the Plaintiff filed an application for permission for the electric power generation business”).

1. The type of the electric generation business: The place of installation; 2. The place of the electric generation business: The Hongsan-do, Hongsan-si, Pungnam-do, 59-1, and two lots; 3. The electric facilities for the electric utility: the type of the original power: the new and renewable energy (type fuel) or the facility capacity: 9M; 22.9kV, 60Hz;

B. On August 31, 2016, the Defendant returned the Plaintiff’s application for permission for the electrical business on the ground that the financial ability and technical ability, etc. for the promotion of the development project meet the criteria for permission for the electrical business, but it is deemed difficult to implement the project in light of the situation of the local government and the residents under its jurisdiction, taking into account the extreme opposing situation (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence No. 3 and purport of whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The plaintiff argues that Article 7 (3) 1 of the Enforcement Rule of the Electric Utility Act provides that "the level of acceptance of an area prearranged for the construction of electric facilities shall be high" as the criteria for the examination of the business performance ability, which is one of the criteria for the permission for the electric utility business, shall be interpreted to have high level of acceptance of electricity produced from electric facilities in the relevant area. Thus, the opposition against the competent local government and local residents to the electric utility generation business of this case cannot be the factor for the above criteria for the examination, and therefore, the disposition of this case is unlawful because it rejected the plaintiff's application for the permission for the electric utility business on the ground that it

In regard to this, the defendant argues that the above criteria for the examination are justified, since the consent of the local government and the local residents about whether to use them at the time of the establishment of the electric generation business, the rejection of the plaintiff's application for the permission for the electric generation business on the grounds of extreme opposition by the local government and the local residents.

B. Relevant statutes

It is as shown in the attached Form.

1) On June 27, 2016, the number of authorities having jurisdiction over the scheduled area of the instant electric generation business is compatible with pros and cons as a result of gathering opinions on the Defendant’s “establishment area and the residents in its surrounding area,” and thus, it is determined that a sufficient project explanation meeting should be held against the residents prior to the implementation of the instant electric generation business, and the residents’ opinions and written opinions should be submitted to the effect that the detailed prior investigation and analysis of various environmental damage likely to some local residents, and the measures at the central and local level for resolving conflicts between regions and residents are also necessary.”

According to the above residents' opinion and the written opinion of review, 29 households, among 32 households of Hongsan-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, are opposed to the establishment of power plants, but they oppose to the residents' damage in 22 old-dong-dong-dong-dong-dong-dong-si

2) On June 29, 2016, the assigned group reported to the Defendant that the case of the instant power generation business was accepted by the “PPP Committee for the Purpose of opposing the establishment of a closed vinyl co-electric power plant” from “resident 3,365 signatories”.

3) On August 16, 2016, 2016, the assigned group opened a press conference at the Bring Agency within the Bring Agency on August 16, 2016 and reported that the Defendant expressed its opposing position on the permission for the development of the instant development project on the ground of regional conflicts surrounding the attraction of the instant electric generation business.

4) On August 18, 2016, the Assignment Group reported that a petition (Attachment to a signature of 9,128 residents) has been received from the Support Committee for the Military Support Agency to oppose the establishment of a waste vinyl co-ownership plant to the Defendant.

5) On August 26, 2016, the former Committee deliberated on the draft license for the instant electric power generation business and presented the following comprehensive opinions.

The part of the financial capacity and technical capacity of the instant electric generation business is indicated in the conflicting position among local residents in relation to the regional accommodation in the capacity to implement the said business, so it is necessary to make a comprehensive judgment in consideration of the rationality of the opinions on the approval and opposition of local governments and local residents and the efforts of the project operator to raise acceptance of the project operator. Whether the competent local government itself does not present an obvious opinion on the detailed criteria for examination related to the regional accommodation? Whether it has implemented the request for the enhancement of regional accommodation in the deliberation ② if there is a need for discussion(the first deliberation), the environmental problem (the first deliberation) raised by local residents cannot be confirmed at the stage of the permission for the electric generation business, and it is desirable to separately discuss and supplement the regional self-development in the stage of the permission for the electric generation business after the permission for the electric generation business.

6) On August 31, 2016, the Defendant rendered the instant disposition on the ground that it is difficult to implement the project in light of the serious opposing situation of the local government and the residents having jurisdiction over the Plaintiff according to the aforementioned deliberation by the Electrical Affairs Commission.

[Ground of recognition] Facts without dispute, Gap evidence No. 12, Eul evidence No. 1 to 4, and the purport of the whole pleadings

D. Determination

1) Interpretation of examination criteria under Article 7(3)1 of the Enforcement Rule of the Electric Utility Act

Article 7 (5) 2 of the Electric Utility Act provides that the electricity business may be conducted in accordance with the plan as one of the criteria for the permission of the electricity business. Article 7 (6) of the same Act delegates the detailed criteria for the permission of the electricity business to the Minister of Trade, Industry and Energy, and Article 7 (3) 1 of the Enforcement Rule of the Electric Utility Act provides that the criteria for the examination of whether the electricity business can be conducted in accordance with the plan shall be one of the criteria for the examination of whether the electricity business can be conducted in accordance with the plan (hereinafter referred to as "the criteria for examination of this case").

However, the prior meaning of acceptance is likely to be misunderstood and confused as ‘taking to receive' and ‘taking to receive'. Therefore, the degree of acceptance of the area intended for the construction of electric installations as stated in the criteria for examination of this case is reasonable to interpret that it is the degree of receipt of the electricity produced by the relevant electric installations in the area planned for the construction of electric installations, i.e., the degree of demand for electricity in the area planned for the construction of electric installations.

2) In the instant case:

A) On the premise that the examination criteria of this case mean that the level of approval for the construction of electric installations is high, the Defendant rejected the Plaintiff’s application for permission for the electric generation business on the ground that the competent local government, the competent local government, and the local residents are strongly opposed to the electric generation business of this case.

However, such interpretation theory of the defendant is derived from the erroneous understanding of the meaning of "acceptance" of the criteria for the examination of this case as "acceptance", and it is not permissible as it goes beyond the possible meaning of the legal text. Thus, the opposition between the granting group and local residents, which the plaintiff cited as the reason for the disposition of this case, cannot be a factor to consider the criteria for the examination of this case.

Therefore, the disposition of this case that rejected the plaintiff's application for the permission of the electricity business is unlawful.

B) Even if the examination criteria of this case can be interpreted as alleged by the Defendant, considering the following circumstances revealed by the facts acknowledged earlier and the purport of the entire pleadings, it is reasonable to view that the Defendant cannot return the Plaintiff’s application for permission to operate the electric utility solely on the grounds that a considerable number of local residents opposed to the electric power generation business of this case, and thus, the instant disposition is unlawful.

① According to Article 7(6) of the Electric Utility Act and Article 7(4) of the Enforcement Rule of the same Act, the examination criteria of the instant case are applied in full consideration of the rationality of the local government’s own opinion, efforts to enhance local accommodation, etc., according to Article 3 [Attachment 1] of the “Public Notice of the Operation of Electric Power System” (Ministry of Trade, Industry and Energy Notice No. 2016-133, July 4, 2016).

② However, on the ground of regional conflict, the Defendant rendered the instant disposition on the ground that a considerable number of local residents, without entirely examining whether it is objectively reasonable to oppose the instant electric generation business on the ground of environmental pollution, and there was their opposing opinions.

③ In addition, the Plaintiff initially applied for the license for the instant electric generation business, and since there was no time to request the Defendant to engage in activities to enhance regional accommodation, it cannot be an appropriate standard in determining whether to grant the license for the instant electric generation business, and the said committee also presented its opinion that the said criteria are not applicable to the Plaintiff.

④ There is no other evidence to deem that the Plaintiff’s application for electric utility license did not meet the instant review criteria.

3. Conclusion

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