(영문) 서울행정법원 2010.10.1. 선고 2010구합20454 판결

The defendant's disposition of approval of the execution plan for electric power resource development business against the defendant's intervenor (hereinafter referred to as "the intervenor") on March 31, 2010 is revoked.

Reasons

1. Basic facts

A. Status of the parties

1) The Plaintiff Company A, B religious organizations, C, D, E, and F are co-owners of the Haak-gu Seoul Metropolitan Government H 3,471.7m (1 December 6, 2006, 1, 2,691m2, 2, 150.6m2, 150.6m2, 3 JJ large 630.1m2, hereinafter referred to as the “instant land”), and the Plaintiff G is the co-owner of the KS apartment constructed on the instant land (hereinafter referred to as the “instant apartment”).

2) The intervenor, around September 199, installed the electric power equipment as follows (hereinafter referred to as the “electric power equipment of this case”) on the ground of the land of this case, without authority, in the process of performing the construction of underground power equipment from the underground site to the port transformation station, at the pre-stage stage to construct the site (Purinium) on the Yongsan-gu Seoul Metropolitan Government M & 8190.4m (hereinafter referred to as “M & 1450.9m, July 29, 2003”) owned by the intervenor, and occupied and used the above land until now.

A person shall be appointed.

B. Progress of the relevant lawsuit

1) Plaintiff A, D, and G filed a lawsuit against the Intervenor seeking removal of the electric power district of this case as Seoul Central District Court 2006Kahap 109176, and the above court rendered a judgment that accepted all the claims of the above Plaintiffs on April 15, 2009, but the Intervenor appealed as Seoul High Court 2009Na43142.

2) However, the Seoul High Court rendered a judgment dismissing the Intervenor’s appeal on October 14, 2009, and the Intervenor appealed as Supreme Court Decision 2009Da91781.

3) On July 22, 2010, the Supreme Court was using the instant apartment site as the site for the instant apartment. The power district established by the Intervenor was only 170m in depth above 40m underground, which is the land of this case, and the part equivalent to 46m in J-2,691m, J-gu, Seoul, which is the land of this case. The monthly rent for the underground portion occupied and used by the Defendant is less than 98,000 won, and the Plaintiff et al. did not make efforts to acquire the instant apartment site as the site for the instant apartment. The Seoul High Court’s decision was reversed, and it did not affect the lower court’s conclusion that the Plaintiff et al. did not remove the instant apartment site for 80m in order to secure the feasibility of construction of the instant high-rise building on the ground of the instant land, and that the Plaintiff et al. could have agreed with the Intervenor who was residing in the Seoul High Court for the purpose of acquiring the said land, but did not remove the instant apartment site for the removal of this case.

C. Circumstances of the instant disposition

Around December 2009, an intervenor filed an application with the Defendant for approval of the implementation plan for electric source development (hereinafter referred to as the "disposition") on March 31, 2010 pursuant to Article 5 (1) and (5) of the Electric Power Source Development Promotion Act, in order to secure the power source of the electric power district of this case, in accordance with Article 12 of the Enforcement Decree of the Electric Power Source Development Promotion Act (hereinafter referred to as the "electric source development project of this case"), and the Defendant issued a disposition of approval of the execution plan for electric source development (hereinafter referred to as the "disposition of this case") and announced it to the Defendant.

1. Name of the business: The name and address of the intervenor; 2. The objective of the business: the 4. project outline of the business in order to compensate for the losses incurred by the underground space of the unused land among the site of electric power facilities and to contribute to the stable supply of electricity by acquiring the user right for the maintenance and repair of the relevant electric facilities: 90.76m: the length of the track: 90.76m. The number of parcels shall be 2.5m: the project period of two lots: the 2.5m project: the 2nd project period: the 2nd project area from April 2010 to March 6, 2011 (12 months) and the location and area of the project area; and

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 3, Eul evidence 12, 13, and the purport of whole pleadings]

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' claims

The Plaintiffs asserted that the instant disposition is unlawful on the following grounds.

1) An intervenor did not undergo procedures for hearing opinions of residents, etc. under Article 5-2(1) of the Electric Power Source Development Promotion Act.

2) The Defendant did not undergo consultation procedures with the relevant administrative agencies under Article 5(4) of the Electric Power Source Development Promotion Act prior to the instant disposition.

3) In rendering the instant disposition, the Defendant did not make a decision on urban planning facilities under the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) on the electric power districts of this case.

4) In the instant disposition, the Defendant did not go through the announcement procedure of topographic maps, etc. in violation of Article 8(2) of the Framework Act on the Regulation of Land Use.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination as to the plaintiffs' assertion in the above paragraph A-1

The purpose of the Electric Power Source Development Promotion Act, prior to the implementation of a project subject to the project, requires the procedure of hearing opinions of the residents in the area affected by the implementation of the project, etc. is to reflect the intention of many interested parties such as local residents, etc. in the selection of sites which form the basis of the project plan, to prevent unfair infringement on the rights of the people and secure the democratization and trust in administration by rationally coordinating their mutual interests. However, in the case of a project to secure the right to use electric power source facilities already installed like the project in this case, the adjustment of interests between interested parties such as local residents, etc. in the selection of sites does not require any longer. In the case of securing the right to use electric power source facilities already installed with the landowner’s consent, it is unnecessary to approve the implementation plan under the Electric Power Source Development Promotion Act. In this regard, the Electric Power Source Development Promotion Act prepares the procedure of obtaining the approval of the implementation plan and expropriation of land, etc. under this case’s plan without the landowner’s consent.

According to the above facts and evidence No. 14, it is difficult to present to the local residents who are affected by the existence of the above electric power equipment, other than the land owners of this case, in that the electric power equipment of this case is located 47 meters underground. ② At the time of the disposition of this case, the plaintiff corporation A, D, and G had already filed a lawsuit against the intervenor to seek the steel equipment of this case and received a favorable judgment at the first instance court and the appellate court. The plaintiffs continued consultation on the maintenance of the electric power equipment of this case between the intervenor and the intervenor. Thus, even if the intervenor did not hold a residents' explanation meeting, the plaintiffs' opinion on the installation of the electric power equipment of this case was not sufficiently delivered to the intervenor. ③ Even if the intervenor did not present a residents' opinion separately, the plaintiffs' opinion on the ground of Article 18-3(3) of the Enforcement Decree of the Electric Power Source Development Promotion Act was not sufficient to acknowledge the necessity of the alteration of the electric power equipment of this case to the extent that the plaintiff and the land owner of this case had not received the above opinion.

Therefore, the plaintiffs' above assertion is without merit.

D. Determination as to the plaintiffs' assertion in the above paragraph A-2

In full view of the facts stated in the evidence Nos. 1 through 6 and the purport of the entire pleadings, the defendant can find the facts that the Seoul Special Metropolitan City Mayor, the Minister of Land, Transport and Maritime Affairs, and the Minister of Public Administration and Security have completed consultation and hear the opinions on the project of this case before rendering the disposition of this case. Thus, the

E. Determination as to the plaintiffs' assertion in the above paragraph A-3

On the other hand, according to Article 6 (1) 1 of the Electric Power Development Promotion Act, where an electric power developer obtains approval of an implementation plan and makes a public notice thereof, the determination and public notice of an urban management plan under Article 30 of the National Land Planning and Utilization Act shall not be required, as long as the Defendant issued a disposition in this case and publicly notified it, it shall not be required to establish, determine and publicly notify an urban management plan under Article 30 of the National Land Planning and Utilization Act.

Therefore, the plaintiffs' above assertion is without merit.

F. Determination as to the plaintiffs' assertion in the above paragraph A-4

According to the proviso of Article 8 (2) of the Framework Act on the Regulation of Land Use, and Article 7 (3) 1 (c) of the Enforcement Decree of the same Act, where designation of an area, district, etc. is deemed granted pursuant to the relevant Acts and subordinate statutes, a topographical map shall not be prepared and publicly announced. However, the same shall not apply to cases where the relevant Acts and subordinate statutes stipulate that the designation of an area, district, etc. shall be publicly announced at the time of designation of an area, district, etc., but the relevant Acts and subordinate statutes do not make the notification of the topographical map. Article 6 (1) 1 of the Electric Source Development Promotion Act provides that where approval of an implementation plan is obtained, the determination and public announcement of an urban management plan under Article 30 of the National Land Planning Act shall be deemed to have been made, but in this case, the preparation and public announcement of a separate topographical map is required pursuant to the main sentence of Article 8 (2) of the Framework Act on the

However, in full view of the overall purport of the statements and arguments in Eul evidence 7 through 10, Nos. 11-1, 2, and 15, the defendant, prior to the disposition of this case, is entitled to the notification of topographic drawings under the Framework Act on the Regulation of Land Use, but the location of the power district of this case under the National Geographic Information Security Management Regulations (No. 653 of the Ministry of Land, Transport and Maritime Affairs Directive) is limited to disclosure under Article 10 (1) [Attachment Table 1] of the National Geographic Information Security Management Regulations, and it cannot be disclosed to the general public pursuant to Article 11 (1) of the same Regulation. Thus, the topographical drawings in the project area of this case shall be announced, but the detailed drawings shall be determined to be managed by the public and the detailed drawings shall be announced by the public, and therefore, it shall not be deemed that there is an error of law, such as the notification of topographic drawings under Article 8 (2) of the Framework Act on the Regulation of Land Use.

Therefore, the plaintiffs' above assertion is without merit.

3. Conclusion

Therefore, since the disposition of this case is lawful, all of the plaintiffs' claims seeking revocation are dismissed as it is without merit. It is so decided as per Disposition.