2010Nu1910 Revocation of revocation of approval of factory construction

As shown in the attached list of plaintiffs.

Plaintiffs - Law Firm -

Attorney Lee --

Plaintiffs - Law Firm -

Attorney Lee --

Attorney Kim - of the plaintiffs - -

Busan Metropolitan City

Representative City Mayor Dognam

Attorney - Law Firm -

Kim Sea Market

Attorney - Law Firm - - Other

Attorney-at-law of litigation – - - Other

Law Firm - Law Firm -

Attorney ---, - - Other

○○ (00000 - 000000)

- - - - - – 000

Attorney - Law Firm -

Changwon District Court Decision 2006Guhap1225 Decided November 2, 2006

Busan High Court Decision 2006Du5540 Decided June 29, 2007

Supreme Court Decision 2007Du16127 Decided April 15, 2010

July 6, 2011

August 17, 2011

1. All appeals filed by the plaintiffs are dismissed.

2. The third intervenor shall bear the costs incurred by the intervention in the lawsuit among the total costs of the lawsuit (including the costs incurred by intervention) after filing the appeal, and the remainder shall be borne by the plaintiffs respectively.

The judgment of the first instance shall be revoked. The defendant's entry on April 27, 2006 in the list of the companies applying for approval of factory construction in the attached Form.

Revocation of the approval of factory construction made to the applicant company (the plaintiffs shall have the date of the above disposition

B asserted as of June 5, 2006, and the above correction was made in the trial before remanding.

1. Scope of judgment of party members;

At the first instance court, the plaintiffs sought the revocation of the disposition stated in the purport of the claim against the defendant (hereinafter referred to as the "disposition in this case"), and the court of first instance rendered a decision to dismiss the whole decision by deeming that the plaintiffs are not eligible to be the plaintiff.

Upon filing an appeal against the judgment of the first instance court, the court of the first instance prior to the remanding of the plaintiffs (hereinafter referred to as "the remaining plaintiffs") did not recognize the plaintiff's eligibility. However, Article 5 (2) 6 of the Ordinance on the Designation of Areas Eligible for Factory Construction in Kim Jong-si, deemed that the relevant laws and regulations of the disposition of this case are applicable to the disposition of this case, the judgment of the court of the first instance prior to the remanding of the plaintiffs, which revoked the disposition of this case on the grounds that the disposition of this case is in violation of the above provisions of the Ordinance.

On the other hand, the remaining plaintiffs and the defendant appealed, but the Supreme Court reversed and remanded all the judgment of the court prior to the remand on the ground that the Ordinance on the Designation of the Constructionable Area of the Factory in Kimhae-si is not applicable to this case.

Therefore, in the trial after remand, all claims for the purport of the claim are included in the subject of the trial.

2. Basic facts

A. On April 6, 2004, 7 companies, including the ○○ Electricity Co., Ltd. (1) around the instant disposition, including the ○○ Electricity Co., Ltd., filed an application for approval of factory construction with the Defendant around April 9, 2004, and the Defendant - Si - - Si - Si - - Si - Si - - Si - - Si - - - 245mi (hereinafter referred to as the “instant application site”) on the subject site, including the land of 00.

(2) Although the defendant requested the examination of environmental impact to the basin basin environmental office in the Nakdong River basin in the Nakdong River basin, it is apprehended that the ground cutting of the project site and cutting of approximately 100 meters in the same side of the river basin basin environmental office is likely to cause a sudden slope, and the ground for approval of factory construction of the above 11 company is returned to the defendant at a place less than 0.0 meters away from the site of the application in this case.

(3) On the other hand, on July 19, 2005, the applicant company entered in the list of the company applying for approval of factory construction attached to the attached Form (hereinafter referred to as the "applicant company of this case"), including the defendant's assistant intervenor, filed an application for approval of factory construction with the defendant as the site subject to the application of this case.

(4) Accordingly, on November 3, 2005, the defendant again requested consultations about the examination of environmental impact to the basin basin environmental office in the Nakdong River basin. On November 28, 2005, the basin environmental office in the Nakdong River basin requested the defendant to supplement "the consent of Busan Metropolitan City and Yangsan City directly affected by the factory's spread of pollutants" and the application site in this case. (5) The defendant requested the defendant to review the examination of environmental impact on the Nakdong River basin environmental office in the Nakdong River basin on December 9, 2005 without properly supplementing the matters requested to supplement the basin environmental office, and it is not appropriate to inform the defendant of the detailed reasons for the implementation of the construction of water-supply site in the Geum River basin site in order to supply the water-supply site within 00 km away from the application site in this case, and it is not appropriate to inform the defendant of the detailed reasons for the implementation of the construction of water-purification facilities within 0 m20 m2 of the Busan Metropolitan City Ordinance.

In a case where the water source protection area has not been publicly announced under Article 5 (2) of the Ministry of Construction and Transportation (Standards for Designation of Factory Construction and Transportation) Rule 5 (Standards for Designation of Sea Areas) of the Ordinance on the Designation of Factory Construction and Transportation within a planned control area, the restriction on factory sites is placed in the case of an area within 15 km from the water intake site towards the upper direction of the watershed and an area within 1 km from the upstream direction of the watershed.

- Article 5 (2) of the Ordinance on Designation of Areas Allowable for Factory in the Yellow Sea (the "Standards for Designation of Areas Eligible for Factory Construction") restricts factory sites in cases where the water source protection area has not been publicly announced, if the water source protection area was not publicly announced, if the water source protection area was located in an area within 10 km from the water intake place towards the upper stream of the watershed and an area within 1 km from the lower stream direction, the factory site is restricted. (6) On January 10, 206, the Defendant made a request for prior consultation to the Defendant on the ground that "No area is publicly announced as a factory site under Article 5 (2) of the Ordinance on Designation of Areas Permitted for Factory Construction in the Nakdong River in the Nakdong River basin," and the application in the instant case is an area designated and publicly announced as a planned control area under the control area subdivision plan, and that it should be managed cleanly than the raw water of the Nakdong River, but the neighboring basin basin environmental office should be notified to the Defendant on the ground that it was improper, 2006.

(7) On April 27, 2006, the defendant notified the head of the Nakdong River basin basin office of the purport that "the construction of Kimhae factory is situated at 0 km from the downstream direction of the water collection place, so the application in this case does not constitute a restricted area under Article 36 subparagraph 7 of the Integrated Guidelines, and notified the purport that "the contents of the consultation should not be reflected," and the same day was amended by Act No. 7678 of Aug. 4, 2005 and enforced on Aug. 5, 2006, and approved the application for the approval of the approval of establishment of the applicant company in this case pursuant to Article 13 of the Industrial Cluster Development and Factory Establishment Act (hereinafter referred to as the "Establishment Act").

B. (1) At the time of the instant disposition, such as the location of the place of the instant application, the procedure was in progress to subdivide the instant application into a planned control area pursuant to Article 36 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and Article 18 of the Addenda Article 18 of the Addenda to the National Land Planning and Utilization Act. (2) No small river adjoining to the instant application was designated as a water source protection area. The small river adjoining to the instant application is in combination with the Nakdong River in the vicinity of each Ri, Ri, Dongcheon-gu, Busan, the East-gu, the Shipping Daegu, the Nam-gu, the Nam-gu, the Geum-gu, the Geum-gu, the Geum-gu, the Geum-gu, the Geum-si, the Do-gu, the Do-dong, the Do-gu, the Do-dong, and the head of the water intake at the place of the instant application (0m from the site of the instant application).

C. (1) The Minister of Environment, on February 18, 1998, approved water development projects in the Yangsan Water Site Development Zone as the Ministry of Environment No. 1998 - 11, and the main contents of the said waterworks are as follows:

(2) The housing site development project area: The outline of the project within the housing site development project area (the purpose of the project is to supply tap water within the water site within the water production area): The water intake facility’s 125,00m/day, water-purification facility’s 114,00m/day, 114,00m/day (e) the location of the project site: the water rate of 654-1m, the water-supply facility’s 654, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply facility’s 20m, the water-supply complex’s 120m from 1997 to 20m.

D. Status of the plaintiffs

Although Plaintiff ○○ and Do○○ were supplied with tap water drawn from the smuggling Dam before the completion of the water intake plant, the water intake plant and the water purification plant was planned to be supplied with drinking water at the same time. The rest of the plaintiffs resided in Busan Metropolitan City and are supplied with drinking water from the water intake plant (Provided, That Plaintiff ○○ and Do○○ are residing in the water intake plant at Yangsan City).

[Ground of recognition] Facts without dispute, Gap 1 through 8, 67 evidence, Eul 1 through 16, 19, 20, 24, 35, 44, 47, 49, and 50 evidence (including the number number)

3. Determination on this safety defense

A. Summary of the parties' arguments

The plaintiffs are standing to sue since they are not the direct counter-party to the disposition of this case, but their direct and specific legal interests protected by the Framework Act on Environmental Policy, Industrial Sites and Development Act, Factory Establishment Act, National Land Planning Act, and Resident Support Act, etc. are infringed upon by the dispositions of this case. "The defendant asserts that "the interests of the plaintiffs are only anti-private interests or indirect and factual interests that are obtained as a result of the public interest protected by the interests of the plaintiffs, and therefore, the plaintiffs do not have standing to sue to seek revocation of the disposition of this case."

B. Determination

(1) Criteria for determining the standing to sue of a third party who is not the other party to an administrative disposition

A third party, who is not the direct counter-party to an administrative disposition, filed a lawsuit seeking revocation on the ground that his/her environmental interest is infringed or is likely to be infringed upon by the administrative disposition, has the standing to sue to prove that his/her environmental interest is protected individually, directly, and specifically by the relevant laws and regulations or the relevant laws and regulations, i.e., the interests protected legally., the standing to sue to prove that the environmental interest is protected legally. However, in cases where the scope of the right to influence that the environmental interest is anticipated to be infringed on by the business, such as the act done by the administrative disposition, is specified in the relevant laws and regulations or relevant laws and regulations, it may be anticipated that the residents in the affected area will directly and seriously cause the environmental damage. Such environmental interest is acknowledged as being directly and specifically protected by the individual residents, unless there are special circumstances, as it is presumed that there is a concern that the environmental interest is infringed or threatened to be infringed on by the environmental interest protected by the law, and the other residents outside the affected area must prove that the environmental interest has been infringed or threatened by the previous disposition.

(2) Determination (A) provides that "the matters concerning the restriction on factory location of factories that may cause environmental pollution" shall be determined and announced by the Minister of Commerce, Industry and Energy after consultation with the head of the relevant central administrative agency. Accordingly, Article 5 subparagraph 1(a) of the Ministry of Commerce, Industry and Energy (No. 2004-98; hereinafter the same shall apply) of the Ministry of Commerce, Industry and Energy provides that "the upper stream of factories in an area which significantly affects the use of water sources, such as water sources" may be designated as a restricted area on factory location where environmental pollution may be caused, and the purport of Article 56(1) [Attachment Table 1] of the Enforcement Decree of the National Land Planning Act (amended by Presidential Decree No. 19647, Aug. 17, 206; hereinafter the same shall apply) provides that "the environmental pollution is not directly and safely affected by the establishment of water pollution in an area and its surrounding area due to the act of development, etc., and it shall not be directly affected by water pollution."

Therefore, as residents who are supplied with tap water and use it, they can be recognized as standing to sue by proving that the aforementioned applicable laws and regulations and relevant laws and regulations directly and specifically protect the individual benefits in their living environment that can drink or use clean tap water without being affected by environmental benefits.

(B) In light of the above legal principles, the following circumstances, i.e., the land price of this case is located around 007, which was scheduled to start water supply at around 0.0km of water supply, and the land price of this case is scheduled to be supplied with drinking water at 0.0 kilometers of water supply at 00,000, and the water supply site around 0.0 square meters of water supply facilities is likely to be combined with the flow of flow water at 0.2 The water supply site around 00,000 is located near 0, and the water supply site of this case is likely to have an environmental impact on 00,000,000 residents' residential water supply facilities, which is likely to be located near 0,000, and the water pollution of this case is likely to have an environmental impact on 0,000,000 water supply site of this case. 3. The examination site of this case is likely to have an environmental impact on 0,000,000 water supply site of this case.

Therefore, the plaintiffs who are supplied with water taken from the water intake place and the water intake place as tap water can be recognized as standing to sue as residents who are individually, specifically, and directly protected environmental interests under the relevant laws and regulations and regulations. Thus, the prior defendant's assertion on a different premise is without merit.

4. Whether the disposition is lawful.

A. The plaintiffs' assertion (1) that the procedures for prior examination of environmental impact are incomplete

Since the defendant requested the head of the Nakdong River basin environmental office to examine the application of the approval of factory construction in this case pursuant to Article 25-3 of the Framework Act on Environmental Policy and Article 7 of the Enforcement Rule of the same Act [Attachment 2], before the prior examination of environmental impact was completed, the disposition in this case is in violation of Article 27 (1) of the same Act which provides that "the approval of factory construction shall not be made before the notification of the opinion of consultation."

(2) Claim for non-establishment of Class 2 district unit planning

The instant disposition is approved by the application for the establishment of a factory that involves development activities at least 30,000 meters. As such, the Defendant’s failure to implement the Class 2 district unit plan despite the establishment and promotion of the Class 2 district unit plan, it violates Article 58 of the National Land Planning and Utilization Act and Article 5(3) of the Enforcement Decree

(3) The assertion that it is an evasion of the law to avoid environmental impact assessment.

The establishment of a factory under the provisions of subparagraph 1 of Article 13 of the Act on the Establishment of Factories, which is a business with a size of 150,00 square meters or more, shall be subject to environmental impact assessment under Article 4 (3) of the Act on the Assessment of Impacts of Works on Environment, Traffic, Disasters, etc. and Article 2 (3) of the Enforcement Decree of the same Act. The applicant company of this case applied for the approval of factory establishment by reducing the size of the factory to 148,245 meters in order to avoid environmental tendency assessment, and the defendant approved it. This is an evasion of the law to avoid environmental impact assessment. (4) Although the applicant of this case claimed that the factory establishment cannot be approved because it is an area corresponding to a water source protection area under the provisions of Article 7 of the Act on the Management of Water and Support for Residents of the Nakdong River Basin, it is not designated as a water source protection area. Thus, the application of this case is unlawful.

(5) Claim for violation of the Guidelines for Industrial Location Development

The filing date of this case falls under the "area within 15 kilometers flow-distance upstream of the water-source preservation area from the water-source preservation area," where the water-source protection area is not publicly announced, and the region within one kilometer flow-distance below the water-source preservation area, and the defendant alleged that the designation of a water-source protection area was unlawful in violation of Article 40 of the Industrial Sites and Development Act (amended by Act No. 7678 of Aug. 4, 2005; hereinafter referred to as the "Industrial Sites Act"), which was publicly announced by the Minister of Construction and Transportation under Article 205-104 of the Industrial Location Development Guidelines (hereinafter referred to as the "former Guidelines") or Article 22 subparagraph 8 of the Industrial Location Development Guidelines publicly announced by the Minister of Environment under Article 205-104 of the Ministry of Environment and the Minister of Construction and Transportation under Article 205-17 of the Ministry of Environment (hereinafter referred to as the "No. 6th of construction and Transportation") and the designation of a water-source management area within 6th of the city.

According to the laws and regulations regarding the establishment of a factory, such as the Act on the Establishment of Factories, the application site of this case cannot be constructed with types of business or factory facilities falling under Article 71 (1) 19 [Attachment 20] 2 subparagraph 2 (Attachment 20] of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment 20] (hereinafter “Attachment 20”). Among the applicants site of this case, a large number of companies engaged in the manufacturing of vessel parts or automobile parts, some companies engaged in the manufacturing of non-ferrous metal manufacturing, metal structure manufacturing, etc., some companies engaged in the manufacturing of base metal manufacturing, metal structure manufacturing, etc., and some companies engaged in the steel plates or plastics manufacturing business, etc. among the above companies, use organic solvents in the process of cleaning machinery and equipment equipment, etc., or discharge inside or specific substances harmful to water quality in the process of manufacturing automobile products, and thus, the disposition of this case by the Defendant is unlawful in the construction of the pertinent area or the pertinent planned management area in violation of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment 20].

(8) The site where the application for violation of the criteria for permission for the development activities under the Urban Planning Ordinance and the Enforcement Decree of the National Land Planning and Utilization Act in the city of Kimhae is the site created by finding the place of origin from a vertical point of view, the source of pollution is the case where the sewage is discharged, and the considerable restoration is not completed according to the permission for the extraction of soil and rocks, so it is a place where the approval for factory construction can not be granted pursuant to the Urban Planning Ordinance of Kimhae-si (Ordinance No. 564 of July 29, 2005, hereinafter the same shall apply) and Article 56(1) [Attachment 1] of the Enforcement Decree of the National Land Planning and Utilization Act according to the delegation of Article 58(3) of the National Land Planning and Utilization Act [Attachment 1] of the National Land Planning and Utilization Act [2] Article 56(1) [Attachment 1] of the Enforcement Decree of the National Land Planning and Utilization Act shall not be likely to cause water pollution in the surrounding area due to the relevant permission under the above Acts and subordinate statutes.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

(1) As long as the National Park Management Agency has consulted with the Minister of Environment in making a decision on the absence of prior consultation about the argument about prior consultation about the examination of environmental impact (A) the determination of the lack of consultation about the examination of environmental impact (A) the consultation with the Minister of Environment regarding the project to develop a collective facility district in the national park, barring special circumstances such as the fact that the contents of the environmental impact assessment are extremely poor enough to achieve the legislative intent of the environmental impact assessment system, the disposition against the opinion of the Minister of Environment cannot be deemed unlawful (see Supreme Court Decision 9Du5092 delivered on July 27, 2001, etc.). (2) Article 26 of the Framework Act on Environmental Policy provides that the approval authority shall enforce the consultation to secure the effectiveness of the prior consultation system. (1) The head of the relevant administrative agency shall provide opinions by applying the consultation with the Minister of Environment such as consultation with the Minister of Environment, etc. (2) The consultation with the Minister of Environment may not reflect any opinion on the prompt restoration of the consultation or consultation.

(B) Whether there is a special reason to accept the consultation’s opinion

In light of the above legal principles, the basin environmental office of the Nakdong River is presumed to be an area where factory location is impossible pursuant to Article 5 (2) 6 of the Ordinance on Designation of Areas where Factory can be constructed at Kimhae-si and Article 36 (7) of the Integrated Guidelines. However, as a management area prior to the subdivision of the application of this case at the time of the disposition of this case, its factory location is sufficient if it satisfies the corresponding standards of the management area prior to the subdivision of the standards for factory location [Attachment 2]. (2) However, the application of this case is within 148,245 square meters, and it is not proper to designate the factory site as an area subject to consultation in accordance with the Enforcement Decree of the National Land Planning Act [Attachment 20], which is the standard for notification of the standards for factory location, and it is not reasonable to consider that the defendant violated the provisions of the National Land Planning Act on the designation of an area where the application of this case was made as an area subject to consultation without any specific reasons.

(2) Determination on the assertion of non-establishment of Class 2 district unit planning (A) Article 55(1) of the Enforcement Decree of the National Land Planning Act provides that "the area of development activities in a management area shall be less than 30,00 meters". As to the calculation of the area, Article 55(4) provides that "if development activities are conducted adjacent to a management area, they shall be deemed as one development activity, and shall be calculated". Paragraph (3) of the same Article provides that "the area of development activities conducted within the scope of households and lots determined as district unit planning" shall not be restricted. The site area of the factory of this case does not exceed 30,00 square meters individually, but shall not exceed 148,245 square meters in total, and as such, the provision of Article 55(1) of the Enforcement Decree of the National Land Planning Act provides that "the construction area of a private road of this case shall be less than 10,000 square meters in total, 200 square meters in total, or 2000 square meters in total.

17. Installation location from the defendant: - Si - - - - 000 Lrisan - 20 meters in width, 1, 213 meters in width, 4 routes, 23, 816 meters in size for installation, permission period: 23,816 meters in size; according to the above facts, the establishment of a private road under Article 44 of the Enforcement Decree of the National Land Planning and Utilization Act shall be excluded from the application of the Class 2 district unit planning under Article 44 of the Enforcement Decree of the National Land Planning and Utilization Act for the establishment of a factory in this case. Accordingly, this part of the plaintiffs' assertion on different premise is without merit.

(3) The mere fact that the applicant company filed an application with the area of a factory to be constructed in the instant application as a little of 150,000 square meters and less than 148,245 square meters, which is subject to environmental impact assessment, cannot be readily concluded that the applicant company filed an application for factory construction by reducing the size of the factory with the intent to avoid environmental impact assessment, and there is no other evidence to acknowledge it. Thus, this part of the Plaintiffs’ assertion is without merit.

(4) Judgment on the assertion that the establishment of a factory cannot be approved because it is an area corresponding to a water source protection area.

As long as the site of this case was not designated as a water source protection area, it cannot be said that it should be managed equally with the water source protection area of the Nakdong River basin, the proviso of Article 7 of the Act on Water Management and Resident Support in the Nakdong River Basin stipulates that "the annual average water quality of the river (referring to the ground water that flows directly into the river or the lake and marsh in which the water intake facility is installed) may not be designated as a water source protection area." In full view of the purport of the oral argument in Gap evidence No. 32, it can be recognized that the annual average water quality of small river exceeds the water source of the Nakdong River taken from the water intake area, and therefore, the plaintiffs' assertion on this part is without merit, premised on the premise that the site of this case should be managed equally with the water source protection area.

(5) Determination on the assertion of violation of the Guidelines for the Development of Industrial Sites

앞서 인정한 사실 및 관련 법령의 해석에 의하여 알 수 있는 다음의 사정 즉 , ① 산업입지법 제40조 제1항은 " 건설교통부장관은 산업단지 외의 지역에서의 공장설립을 위한 입지지정과 지정승인된 입지의 개발에 관한 기준을 작성 · 고시할 수 있다 " 라고 규정하고 있는 점, ② 위 규정에 의한 산업단지 외의 지역에서의 공장설립을 위한 입지지정과 입지의 개발에 관한 세부적인 기준이 산업입지개발지침에 포함된 점, ③ 이 사건 공장설립은 산업단지 외의 지역에서 이루어지는 것이고, 그 승인 신청은 2005. 7. 19. 경에, 공장설립승인 처분은 2006. 4. 27. 에 있었는데, 이 무렵의 산업입지 개발지침은 2005. 5. 6. 고시한 구 지침과, 2005. 12. 26. 고시한 통합지침이 시행되고 있었던 점, ④ 구 지침 제22조 제8호와 통합지침 제36조 제7호가 " 시장 · 군수는 상수 원보호구역이 고시되지 아니한 경우에는 취수장으로부터 수계상 상류방향으로 유하거 리1 ) 15km 이내인 지역과 하류방향으로 유하거리 1km 이내인 지역에는 개별공장입지의 지정승인을 하여서는 아니된다 " 고 규정하고 있는 점, ⑤ 산업입지법 제41조 제1항 은, 산업단지 외의 지역에서 국토계획법상의 용도지역을 변경하여 공장설립을 할 경우 공장설립법 제13조의 규정에 따라 공장설립승인신청을 하도록 하면서, 제2항에서 공장설립승인을 하고자 할 때에는 산업입지법 제40조가 정한 기준에 적합하도록 하여야 한다고 규정하고 있는 점, ⑥ 산업단지 이외의 지역에서 용도지역을 변경하여 공장설립 승인 신청을 할 경우에는 구 지침이나 통합지침이 정한 기준의 충족 여부가 고려되어야 할 것이나, 이 사건은 용도지역을 변경한 경우가 아닌 점, ⑦ 또한 구 지침 제20조 나 통합지침 제34조는 " 개별공장설립을 위한 입지지정신청은 … … 신청하는 경우를 말한다 " 로, 구 지침 제21조, 통합지침 제35조의 각 제1항은 " 시장 · 군수는 개별공장입지의 지정신청을 받은 경우에는 다음 각 호의 사항을 종합적으로 검토하여 승인 여부를 결정하여야 한다 " 로, 구 지침 제22조 제1항, 통합지침 제36조 제1항은 " 시장 · 군수는 다음 각 호의 1에 해당하는 지역에 대하여는 개별공장입지의 지정승인을 하여서는 아니된다 " 로 규정하여, 구 지침이나 통합지침은 개별공장설립을 위한 입지지정신청과 이에 따른 입지의 승인 여부에 관하여 규율하고 있는 점, ⑧ 공장설립시의 입지에 관해서는 공장설립법 제8조는 공장입지기준을 고시하도록 하고 있고, 이에 따라 공장입지 기준고시가 시행되어 위 고시에 따라 공장입지 기준의 충족 여부가 결정될 것이고, 공장설립법 제9조는 시장 · 군수는 당해 토지의 지번별로 공장설립의 가능 여부를 확인하여 통지하도록 규정하고 있으며, 실무상으로도 산업단지 외의 지역에서 공장설립을 위해서는 공장설립법 제13조에 따라 공장설립승인 신청을 하면 될 뿐이고, 공장입지지정 신청을 하는 것은 아닌 것으로 보이는 점, ⑨ 통합지침 제2조 ( 적용범위 ) 는 " 산업단지 및 산업단지 외의 개별공장의 입지 및 개발에 관하여 다른 법령에 특별한 규정이 있는 경우를 제외하고는 이 지침을 적용한다 " 고 규정하고, 공장설립법과 그에 따른 공장입 지기준고시에 따른 공장입지기준은 다른 법령의 특별한 규정에 해당하므로, 위 통합지 침의 적용이 배제된다고 봄이 상당한 점 등의 사정을 종합하여 보면, 결국 구 지침이나 통합지침은 이 사건 공장설립의 관련 법규라고 보기 어렵다 할 것이다 .

Therefore, this part of the plaintiffs' assertion that the head of the Gu's guidelines or integrated factory construction is not necessary. (6) The Enforcement Decree of the National Land Planning and Utilization Act [Attachment Table 20] provides for the determination of the violation of the Ordinance on the Designation of Factory Areas within 1,000 square meters for each of the following areas (if the head of the 5,000 square meters of factories are constructed together with 2 or more factories or constructed adjacent to the existing factory sites, and if the area of the 1,000 square meters of factories is less than 8,000 square meters of factories, the head of the 5,000 square meters of factories, and if the head of the 5,000 square meters of factories is the same as that of the 1,000 square meters of factories, the head of the 2,000 square meters of factories, which is less than 1,000 square meters of factories, the head of the 2,000 square meters of the 2,000 square meters of factories shall also be applied.

The term "Article 8 subparagraph 1 of the Act and Article 12 (1) of the Decree provide for the type, size and scope of the factory permitted or restricted by specific-use areas (attached Table 2)," as shown below, with respect to "type, size and scope of the factory permitted or restricted by specific-use areas or limited by specific-use areas (type, size and scope of the factory permitted or restricted by specific-use areas before the subdivision of control areas)".

However, the standard announcement of factory location [Attachment 2] The Enforcement Decree of the National Land Planning and Utilization Act [Attachment 20] shall be the same as the type, size, and scope of factories permitted or restricted by specific-use areas] as to the "building that can be constructed within a planned management area"; 2. Building ( omitted) which may be constructed in accordance with the urban planning municipal ordinance.

Of the factories referred to in subparagraph 13 of attached Table 1 of the Enforcement Decree of the Building Act [Attachment Table 1], the area of a site (where two or more factories are constructed together or constructed adjacent to an existing factory site and two or more sites adjoin a road, referring to the total of such areas) is at least 10,000 square meters in size, and the area is located within the area publicly notified by the Special Metropolitan City Mayor, a Metropolitan City Mayor, a Mayor, or the head of a Si/Gun as an area of at least 15,00 square meters in size and is located within the area publicly notified as an

[Attachment 19] Subparagraph 2 (g) (i) through (iv) of subparagraph 2 of [Attachment 19] and (ii) chemical product preparation facilities (including refineriess): Provided, That this shall exclude manufacturing facilities for solid chemical products which do not use liquid substances, such as water and solvents, or product ingredients of which are not melting or melting; (iii) the first metal, processed metal products and manufacture facilities for mechanical equipment under subparagraph 4 of attached Table 1 of the Enforcement Decree of the Wastes Control Act (Attached 1); (iv) the storing or processing of waste organic solvents and skin using water or chemical drugs; (5) the reduction, refining, shot, and salting facilities among the textile manufacturing facilities; and (v) the Enforcement Decree of the Wastes Control Act (amended by Presidential Decree No. 1982, Jan. 5, 2007; hereinafter the same shall apply); and (d) the designated wastes related to subparagraph 3 of attached Table 4.

c) The Enforcement Decree of the National Land Planning and Utilization Act [Attachment 19] provides that "any building that can be constructed within a production management area" shall be constructed as stipulated by the urban planning ordinance; 2. A building ( omitted) that may be constructed as stipulated by the Ordinance of the Ministry of Environment (limited to any substance prescribed by the Ordinance of the Ministry of Environment or any substance containing such substance), b. other waste organic solvents (referring to any organic solvent other than item (a).

Of factories under subparagraph 13 of the attached Table 1 of the Enforcement Decree of the Building Act, factories built in Do refining factories and food factories and in Eup/Myeon areas do not fall under any of the following subparagraphs - (1) emission of specified air harmful substances under subparagraph 8 of Article 2 of the Clean Air Conservation Act, (2) air pollution emission facilities under subparagraph 9 of Article 2 of the Enforcement Decree of the same Act, which fall under Class 1 or Class 3 workplaces under the provisions of subparagraph 9 of the attached Table 8 of the Enforcement Decree of the same Act, (3) emission of specific substances harmful to water quality under subparagraph 3 of Article 2 of the Water Quality Conservation Act, (4) emission facilities under subparagraph 5 of Article 2 of the Water Quality Conservation Act, which fall under wastewater discharge facilities under subparagraph 5 of the attached Table 1 of the Enforcement Decree of the same Act.

Article 2 subparag. 8 of the Clean Air Conservation Act (amended by Act No. 779 of Dec. 29, 2005; hereinafter the same shall apply) provides that "eight-ton of air pollutants" means air pollutants prescribed by Ordinance of the Ministry of Environment that may directly or indirectly cause harm to people's health and property or the growth of plants," and Article 4 (Special Rules of the Clean Air Conservation Act (amended by Ordinance of the Ministry of Environment No. 204 of May 24, 2006; hereinafter the same shall apply) provides that "specified air pollutants under subparagraph 8 of Article 2 of the Act (the same shall apply to the attached Table 2) shall be classified as "air pollutants of not less than 35 tons of air pollutants" and "facilities of not less than 35 tons of air pollutants (the same shall apply to the attached Table 2)" as "air pollutants of not less than 9," and Article 2 subparag. 9 of the Clean Air Conservation Act (the same shall apply to the attached Table 3)" as "air pollutants of not less than 9.

On the other hand, Article 2 subparag. 3 of the High-Pressure Gas Management Act (including the Act before it was amended by Act No. 7428 of March 31, 205; hereinafter the same shall apply) provides for facilities for manufacturing and recycling of liquefied petroleum gas; Article 10 of the Enforcement Decree of the Water Quality Conservation Act (including the Act before it was amended by Ordinance of the Ministry of Environment No. 194 of Jan. 2, 2006; hereinafter the same shall apply); Article 3 of the Enforcement Decree of the Water Quality Conservation Act (including the Act No. 1) provides for facilities for manufacturing and storing dangerous substances; Article 2 subparag. 1 of the Act; Article 4 of the Act provides for facilities for manufacturing and recycling of liquefied petroleum; Article 5 of the Act provides for facilities for storing and storing dangerous substances; Article 2 subparag. 5 of the Enforcement Decree of the Act; - Other facilities for discharging water at the place of business and facilities for storing dangerous substances at least 0m different from those prescribed by Ordinance of the Ministry of Environment (see attached Table 2);

5) Article 13(1) of the Addenda of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 17816, Dec. 26, 2002) provides that the provisions of the attached Table 27 shall apply to the restriction on construction within the management area until the management area is subdivided pursuant to Article 18(3) of the Addenda of the Act (amended by Presidential Decree No. 17816, Dec. 26, 2002). The above [Attachment 27] provides that the provisions of the attached Table 27 shall apply to the restriction on construction within the management area, and the above [Attachment 27] provides that the buildings (not omitted) which may be constructed in accordance with the Urban Planning Ordinance

[Attachment 19] Subparagraph 2 (g) and 2 (j) [Attachment 20] subparagraph 2 (j) of [Attachment 20] and subparagraph 2 (j) of [Attachment 20] [Attachment 23] [Attachment 23]] the Urban Planning Ordinance of Kimhae-si provides that "any building that can be constructed within a management area as prescribed by the Urban Planning Ordinance within a management area in accordance with subparagraph 2 of attached Table 27] shall be as follows: 10. [Attachment 19] subparagraph 2 (g) and [Attachment 20] subparagraph 2 (g) and [Attachment 20] subparagraph 2 (j) of the Enforcement Decree of the Building Act [Attachment 1] 16 [Attachment 1] the Enforcement Decree of the Building Act (excluding scrapping, sales, and maintenance factories).

1) In full view of all the above laws and regulations on the factory establishment of this case, unless the factory of this case falls under buildings the construction of which is restricted under subparagraph 2 (j) of the Enforcement Decree of the National Land Planning Act [Attachment 20], the disposition of this case is not erroneous in violation of Acts and subordinate statutes. According to each of the above evidence, it can be recognized that the factory of this case falls under dangerous substance storage and treatment facilities, automobile-related facilities, excreta and waste treatment facilities, etc., and it does not fall under "construction facilities" of the Enforcement Decree of the Building Act [Attachment 1], manufacturing business, manufacturing business, manufacturing business of 2 (g) through (4) of the Enforcement Decree of the National Land Planning Act or manufacturing business of non-processed machinery, equipment, etc. of which the factory of this case falls under manufacturing business, manufacturing business of 2 (j) of 20 (Attachment 20) of the Enforcement Decree of the National Land Planning Act or manufacturing business of non-processed machinery, equipment, etc. of 12 (j) of 20) of the Enforcement Decree of the National Land Planning Act.

3) However, if there are special circumstances in the administrative litigation, the pertinent disposition authority should assert and prove the legality of the administrative disposition at issue. However, insofar as the principle of pleading still exists in the administrative litigation, it is necessary for the applicant for revocation of the administrative disposition to first claim specific facts constituting an illegal cause (see, e.g., Supreme Court Decision 98Du2768, Mar. 23, 200). According to the above legal principles, it is difficult for the applicant company to establish a factory based on subparagraph 2 of the Enforcement Decree of the National Land Planning Act [Attachment 20] at least 10 square meters in its respective types of business to be operated by the applicant company, and it is difficult for the Defendant to find that there is no other evidence that falls under the category of 2 (j) of the aforementioned Table 4-2 (j) of the Enforcement Decree of the National Land Planning and Utilization Act, as it does not fall under the category of business operated by the applicant company at least 40 meters in any way.

5) In addition, there is no evidence to acknowledge the fact that the instant factories generate waste organic solvents under subparagraph 4 of the Enforcement Decree of the Wastes Control Act (attached Table 1), and that the instant factories constitute “facilities for preparing chemical products” under subparagraph 2 (j) of attached Table 20 of the Enforcement Decree of the National Land Planning Act (attached Table 20), “storage or processing by using water or chemical drugs,” and “reduction, refining, white, and salting facilities” among textile manufacturing facilities.

6) Therefore, the instant factories cannot be deemed to fall under buildings with limited construction pursuant to subparagraph 2 (j) through (5) of the Enforcement Decree of the National Land Planning and Utilization Act [Attachment 20]. Thus, the Plaintiffs’ assertion that the Defendant approved the establishment of a factory that cannot be constructed within a planned control area in violation of the statute related to the establishment of a factory is without merit. (c) Whether the Defendant deviates from or abused discretionary power

1) Whether the instant disposition was an abuse or deviation of discretionary power is determined by weighing public interests, such as the benefits the applicant company obtained through the establishment of the instant factory, the creation of employment accompanied by the factory establishment, the activation of regional economy, etc., and the benefits the residents who are supplied with tap water from the pollution of the water intake place in accordance with the factory establishment and the water intake place are unable to be supplied with clean tap water, and the destruction of the natural environment (damage caused by soil, water quality, air pollution, etc.) following the establishment of the factory should be determined by weighing and balancing.

Meanwhile, even if a certain administrative act is a binding act or a discretionary act, whether it is a discretionary act or a discretionary act is not uniformly defined, and it shall be determined individually in accordance with the form of the provision or the language and text that served as the basis for the pertinent disposition (see Supreme Court Decision 2007Du18321, May 29, 2008, etc.). The act of newly constructing, enlarging, or relocating or changing a factory of at least 500 square meters in a factory construction area in a growth management area is prohibited in principle, but such act may be conducted by exceptional permission if it does not contravene the purpose of designating the above area in specific cases. Since such exceptional permission is beneficial to the other party, the approval of factory relocation belongs to the discretionary act (see Supreme Court Decision 2003Du7606, Jul. 22, 2004, etc.).

The court's judicial review of the above discretionary act is to examine only whether the act in question is in deviation or abuse of discretion by misunderstanding of facts, violation of the principle of proportionality and equality, and violation of the purpose of the act in question or illegal motives, etc. (Supreme Court Decision 2001.

7. According to the above legal principles, it is difficult for the defendant to claim and prove that the administrative disposition by free will deviates from the limits of its discretionary authority. (4) It is difficult for the defendant to claim and prove that the administrative disposition by 10,000 tons of the river basin was legitimate (see, e.g., Supreme Court Decision 87Nu861, Dec. 8, 198) because of the fact that it was difficult for the defendant to claim and prove that the 20th anniversary of the 1,000 square meters of the 1,000 square meters of the 4,000 square meters of the 4,000 square meters of the 1,000 square meters of the 1,000 square meters of the 2,000 square meters of the 2,000 square meters of the 3,000 square meters of the 2,000 square meters of the 2,000 square meters of the 3,000 square meters of the 2,0044.

(8) Determination on the assertion of violation of the Urban Planning Ordinance in Kimhae and the criteria for permission for development activities under the Enforcement Decree of the National Land Planning Act

The plaintiffs asserted that the disposition of this case is a disposition in violation of the criteria for permission for development activities under Articles 20, 21, and 22 of the Urban Planning Ordinance and Article 56 (1) of the Enforcement Decree of the National Land Planning Act in the case of the factory establishment of this case, but it entails permission for development activities under the National Land Planning Act (Article 56 (1) 2 of the National Land Planning Act), and if approval for factory establishment is granted after consultation with the relevant administrative agencies on development activities for the purpose of approval for factory establishment, it shall be deemed that permission for development activities is granted (Article 13-2 (1) and (5) of the National Land Planning Act), and each evidence and evidence of this case adopted above, and evidence of 11, 13, 21, 22, and 30 evidence are written, and consultation between the defendant and the applicant company of this case about development activities related to the factory establishment of this case in accordance with the prior examination of the environmental impact of the Nakdong River basin basin basin, and thus, it cannot be deemed that the above approval criteria for development activities under the National Land Planning Act or the above.

Therefore, this part of the plaintiffs' assertion is without merit on different premises.

5. Conclusion

Therefore, the plaintiffs' claims in this case are all dismissed due to the lack of reason, and the judgment of the court of first instance is unfair by rejecting the lawsuit in this case, but this case is recognized to have been tried to the extent that it can render a judgment on the merits of this case, so this court shall not remand it to the court of first instance pursuant to Article 8 (2) of the Administrative Litigation Act and the proviso of Article 418 of the Civil Procedure Act, but this court shall decide to render a judgment on the merits of this case by itself, but only the plaintiffs cannot dismiss their claims because the judgment of the court of first instance cannot be revoked against the plaintiffs who are the appellant under the principle of prohibition of disadvantageous change in this case. Thus, all appeals by the plaintiffs

Judge fixed-use of judges

Judges Park Young-young

Judges Park Jong-chul

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