[1] Requirements for suspension of execution under the Administrative Litigation Act

[2] The meaning of "irreparable damage" and "emergency necessity," which are the requirements for suspension of execution as stipulated in Article 23 (2) of the Administrative Litigation Act, and the scope of the liability for assertion and explanation thereof (=applicant) and the scope of damage difficult to recover

[3] Where the Minister of Land, Transport and Maritime Affairs, etc. filed an application for the suspension of execution on the "approval, etc. of the implementation plan, etc. of the Han River Project" with respect to the four major river improvement projects on the grounds that residents living near the project section have suffered damage from expropriation and environmental interest-related damage, such as drinking water pollution, the case holding that the applicant's assertion is groundless because it is difficult to recover damage, which is the requirement for the suspension

[1] The suspension of execution under the Administrative Litigation Act exists as a formal requirement, and a legitimate principal lawsuit shall be pending in the court, and there is an urgent need to prevent damage difficult to recover due to substantive requirements, and there is no risk of significant impact on public welfare, and there is no reason to believe that there is no reason to request the principal lawsuit.

[2] "A loss difficult to recover", which is a requirement for suspension of execution under Article 23 (2) of the Administrative Litigation Act, means a loss which cannot be compensated with money, barring any special circumstance. It refers to a loss where monetary compensation is impossible to compensate with money, which refers to a type or intangible loss where the party against whom an administrative disposition was taken is unable to withstanding for reference or where it is considerably difficult to obtain reference, or where it is considerably difficult to cover with reference. "Urgent necessity" means that there is no time to wait for the judgment on the merits in order to avoid the loss due to imminent occurrence of irrecoverable damage at time. In principle, the liability to assert and explain such affirmative requirement is limited to the applicant. Meanwhile, the damage difficult to recover is limited to the applicant's personal damage, and it does not include the damage suffered by a third party, other than the public interest damage or the applicant.

[3] The case holding that in case where the Minister of Land, Transport and Maritime Affairs, etc. filed an application for the suspension of execution on the grounds that residents living near the project section with respect to the "approval plan, etc. for the Han River Water Project Implementation Plan, etc.," which was announced by the Minister of Land, Transport and Maritime Affairs in relation to the four major river improvement projects, damages caused by expropriation and environmental benefits such as drinking water pollution, etc. such as land ownership and water pollution, the damages caused by expropriation of land ownership and other rights cannot be deemed as damages caused by ordinary monetary compensation, or where it is difficult for the party to whom the administrative disposition was taken in light of social concept to have referred or to have referred to as "money compensation", and it is difficult to see that there was sufficient explanation that the water quality of the Han River River basin is contaminated or water quality is insufficient to the extent that the water source of the Han River basin is not usable as drinking water sources, and that there was a flood damage such as flood, etc., and that there is no need to prevent the applicant from claiming for the suspension of execution.

[1] Article 23 (2) and (3) of the Administrative Litigation Act / [2] Article 23 (2) of the Administrative Litigation Act / [3] Article 23 (2) of the Administrative Litigation Act

[2] Supreme Court Order 99Da42 dated December 20, 1999 (Gong2000Sang, 494) Supreme Court Order 2003Ma41 dated May 12, 2004

Applicant 1 and 6200 others (Law Firm LLC et al., Counsel for the plaintiff-appellant)

The Minister of Land, Transport and Maritime Affairs and one other (Law Firm Doz. and six others, Counsel for defendant-appellant)

Korea Water Resources Corporation (Law Firm Doz. and 7 others, Counsel for defendant-appellant)

1. All of the applicants' requests are dismissed.

2. The applicant shall bear all the costs incurred in relation to the participation.

The respondent shall be the Government's basic plan for the Han River Maintenance Project on September 1, 2009; the Han River Maintenance Project on November 23, 2009 No. 209-1084; the approval of the implementation plan for the Han River Maintenance Project on December 1, 2009; the approval of the implementation plan for the Han River Maintenance Project on June 1, 2009-112; the approval of the implementation plan for the Han River Maintenance Project on December 20-19, the Han River Maintenance Project on 200-14, the Seoul 200-19, the 200-19-12, the 200-1, the 3-19-1, the 205-1, the 200-1, the 3-1, the 205-1, the 200-1, respectively, the 200-1, the 25-1, the 2010-1, the 205.

1. Basic facts

In full view of the purport of the records and the whole examination, the following facts are substantiated.

A. The 4 major river improvement project is a project implemented in accordance with the comprehensive water control plan and basic river plan for river basin under the River Act and other relevant Acts and subordinate statutes to prevent flood and droughts in the projects implemented for four major rivers, such as Han River, Nakdong River, Geum River, Geum River, Yeongsan River, and Yeongsan River, to solve water problems, to restore and utilize the river ecosystem, and to systematically and systematically manage and implement it in order to promote balanced regional development and regional economy and culture and tourism.

B. On June 8, 2009, four parts, including the Ministry of Land, Transport and Maritime Affairs, the Ministry of Environment, the Ministry of Culture, Sports and Tourism, the Ministry for Food, Sports and Tourism, and the Ministry for Food, Agriculture, Forestry and Fisheries, such as the 4th River Pluxur, announced the fourth River Pluxur in order to present the basic direction for the improvement project of the fourth River, and the fourth River Pluxur was published and distributed the final report on August 24, 2009.

C. The main contents of the Han River Slaughtering project based on the Han River Subdivision (hereinafter “instant project”) include: (a) the dredging of deposited soil from 0.50 million cubic meters in Han River basin; (b) the installation of two river mouth storage stations; (c) the reinforcement of the 131km in the Han River basin; (d) the reinforcement and enhancement of environmental infrastructure facilities, such as the expansion of 12 agricultural reservoirs, and the construction of ecological wetlands, farmland and the creation of ecological wetlands in the river 13km in the river basin; (e) the construction of ecological rivers within the river system; and (e) the construction of bicycle roads with 305km in the river basin.

D. Based on the detailed plan for the instant project, Han River basin was divided into several sections, and a detailed project implementation plan was included for each of the following sections. The respondent head of the Seoul Regional Construction and Management Administration announced on October 23, 2009, No. 2009-310, and No. 2009-311, and No. 2009-311, and announced on October 28, 2009, the Han River 3, 4 project, and the Han River 6 project implementation plan for the Han River 3, 2009-317, respectively, announced on November 12, 2009, the Han River 3, 4, 6 project implementation plan for the Han River 3, 337 through 339, and announced on November 17, 2009, the Han River 209 announced on May 31, 201, the Han River 2030-34, 2014.

E. On November 23, 2009, the Minister of Land, Transport and Maritime Affairs approved each implementation plan for the Han River Subdivision project with No. 2009-1084, Dec. 1, 2009, No. 2009-112, Nov. 12, 2009, and No. 2009-1121, Nov. 22, 2009, and publicly notified that each implementation plan for the Han River Subdivision project with No. 6, 3, 409-1122 of the same notification by the Ministry of Land, Transport and Maritime Affairs, and Maritime Affairs (No. 2010-57 through 60 of the same notification on Feb. 5, 2010, and publicly notified the same.

2. Requirements for suspension of execution; and

A. Relevant legal principles

In a case of an application seeking suspension of the validity of an administrative disposition, suspension of execution, etc., the validity of the administrative disposition itself should not be determined, but the existence or absence of the requirements prescribed by the Administrative Litigation Act as to whether the administrative disposition itself is effective or suspended (see Supreme Court Order 86Du5, Mar. 21, 1986) is subject to such determination (see Supreme Court Order 86Du5, Mar. 21, 1986). Suspension of execution under the Administrative Litigation Act shall exist as a formal requirement, and a legitimate principal lawsuit shall continue to exist in a court, and it shall be urgently required to prevent any damage difficult to recover due to substantive requirements, and it shall not be clear that there is no reason to request the merits (see Articles 2

(b)Formal requirements;

(i) the existence of a governmental master plan on September 2009

The Respondent asserts to the effect that the Respondents made a government master plan for the fourth river improvement project on September 2009. However, there is insufficient vindication as to the fact that the Respondents made the above government master plan on or around September 2009 only with the materials submitted by the Respondents. Therefore, the part on which the Claimants sought the suspension of validity of the above government master plan among the applications in this case is unlawful (On the other hand, the Claimants submitted a preparatory document as of March 8, 2010 after the completion of the examination, and submitted the preparatory document as of March 8, 2010, and submitted it to the Respondents as the government master plan for the fourth river master plan. However, the Appellants for the fourth river master plan merely presented the basic direction for the fourth river improvement project as they are named, and in itself, they do not have any effect to regulate individual and specific rights and duties of the general public, and thus are not subject to an administrative disposition

(ii) the existence of applicants’ litigation capacity and standing for being a party;

(A) Litigation capacity;

First, among the applicants, some of the applicants such as applicants are minors. Nevertheless, there is no vindication as to the appointment of a legal representative or the consent or ratification of the legal representative regarding the application of this case and the institution of the merits lawsuit filed by the minor applicants. Therefore, the application of this case filed by the minor applicants at least and the lawsuit filed on the merits are unlawful by the legal representative appointed by the non-legal representative.

(B) qualifications for parties;

According to the records, the facts that the project in this case is the project subject of environmental impact assessment, the environmental impact assessment of the project in the environmental impact assessment of the project in this case set up the project section, the area surrounding the project section, the surrounding area, etc. as the area subject to environmental impact assessment; and the applicant 1 resides in both villages instead of the Gyeonggi-do branch, which is the third section of the project in this case, and the fact that some of the applicants reside in the area adjacent to the project in this case. Therefore, it is clear that at least some of the applicants are entitled to seek the revocation of administrative disposition following the implementation of

C) Sub-decision

At least, as long as some applicants, including applicants 1, have litigation capacity and standing as parties, the decision on the litigation of the merits of this case currently pending with respect to all applicants and their standing as parties (the damages incurred by the subsequent expropriation among the various damages claimed by the applicants are deemed to be an infringement of interests, not environmental interests, rather than environmental interests, and thus, whether the parties have standing to seek revocation of each disposition of this case on the ground of the infringement of such interests should be separately determined, in principle, whether they have standing to seek revocation of each disposition of this case on the ground of the infringement of the interests, should be separately determined, but the same part should not be determined by the substantive requirements of suspension of execution.)

(c) Emergency needs to prevent irrecoverable damage.

1) Applicant's assertion

The applicants asserts to the effect that each disposition written in the purport of the application causes irrecoverable damage and urgent need to prevent such damage:

First, applicants who reside in or have ownership and other rights in the area subject to environmental impact assessment and adjacent areas are entitled to the land ownership and other rights due to the project in this case, who leaves the settlement place and are no longer able to move to the place of farming. In particular, organic farming in the selling area, which is the largest environment-friendly organic farming area, is at the risk of de facto de facto dissolution.

Second, the applicants who are supplied with drinking water at the summer, Ycheon, Gwangju, or Han River water intake center located within the business section of the instant case are suffering from environmental benefits and health rights, such as the supply of drinking water contaminated by the aggravation of water quality of water sources due to the deposit, deposited soil, tidal currents, etc. generated during construction or after construction, or dredging at the time of construction or operation, resulting in the fall below the lower level due to the changes in water level of dry water season or flood.

Third, there is a concern that the applicants who live near the construction site or in the leisure market may be harmed by flood damage such as flood.

Fourth, even though the value of the conservation of the natural environment should be protected more preferentially than the value of the development, the natural environment is destroyed by affecting the aquatic ecosystems, such as the risk of extinction of rare species, such as the instant project, etc. Furthermore, the environmental rights of future generations are infringed, and the history and culture of our nation are denied or destroyed, thereby causing damage to our nation as a whole.

2) Determination

A) Relevant legal principles

"A loss difficult to recover", which is a requirement for suspension of execution under Article 23 (2) of the Administrative Litigation Act, means a loss that cannot be compensated in money, unless there are special circumstances. This refers to a loss where monetary compensation is impossible, or monetary compensation means a type or intangible loss where the party subject to an administrative disposition is unable to accept for reference or where it is considerably difficult to check for reference, and "emergency necessity" means that there is no time to wait for the judgment on the merits in order to avoid the loss due to imminent occurrence of irrecoverable damage at time. In principle, the claimant's affirmative requirement for suspension of execution is on the side of the applicant in principle (see Supreme Court Order 99Da42, Dec. 20, 199; Supreme Court Order 2003Da41, May 12, 2004, etc.). Meanwhile, the damage difficult to recover is limited to the applicant's personal damage or damage to the public interest, and it does not include any damage suffered by a third party, other than the applicant.

B) Loss caused by expropriation

First of all, the damage caused by the expropriation of applicants who reside in or have ownership or other rights in the area subject to environmental impact assessment and adjacent areas.

In light of the fact that the expropriation of land ownership and other rights constitutes a disposal of property and the party to the expropriation receives various kinds of compensation due to it; most of the applicants engaged in organic farming as a river site owned by the State have been cultivated with permission to occupy and use a river; and the administrative agency imposed conditions that permission, alteration, revocation, etc. may be granted when permission is granted or a river maintenance project is implemented in accordance with the public interest or other Acts and subordinate statutes; etc., the above damages asserted by the applicants cannot be deemed as damage in the event that ordinary monetary compensation is impossible or monetary compensation is considerably difficult for the party to whom administrative disposition was taken under social norms.

Therefore, this part of the argument is without merit.

C) Environmental interest-related damages, such as drinking water pollution.

Next, it is considered that environmental interest such as drinking water pollution and damage to health rights.

The project of this case includes measures to improve the water quality of sewage treatment facilities and to manage the inflow of pollutants; the concentration of the consignment generated during the project is much lower than the concentration of the consignment generated during the flood season; the consignment generated during the construction is purified and processed without any particular problem, and the water was supplied as potable water, etc.; and the environmental impact assessment of this case presents a stable measure to secure water such as the transfer of water intake facilities or the construction of a water intake tower in the environmental impact assessment report of this case; thus, it is difficult to view that the data submitted by the applicant sufficiently explained the applicant as to what form the above damage occurred to a certain extent beyond the permissible limit of admission.

Furthermore, even when there is an urgent need to prevent damage, in light of the following: (a) there is no specific material presentation on which pollutants are emitted from the instant project; and (b) there is no reliable material presentation on which water quality is deteriorated to the extent that it is impossible to be used as a food source, etc.; (c) the situation of the water intake site is beyond the degree of simple possibility and lack of material on its concrete seriousness; and (d) the respondent can modify or modify each of the instant plans from time to time in response to changes in the situation at the time when the project under each of the instant plans was implemented in a relatively broad range; and (b) it is difficult to see that it was sufficiently explained that the water quality of Han River basin is contaminated or water is insufficient to the extent that it is impossible to use the water source of Han River basin as a food source, etc., if the effect of each of the dispositions

Therefore, this part of the argument is without merit.

D) flood damage, etc.

Next, we examine whether applicants living near the construction site or in the leisure market are likely to cause harm to life and body due to flood damage, such as flood.

In light of the fact that three deemed operating manuals installed in the Han River can open a door and discharge water, it is deemed possible to regulate flood level in the specific operation process of the river, and the contents of dredging and river environment maintenance are included in the instant project, etc., it is difficult to view that the materials submitted by the applicants alone sufficiently explained that the above losses of the applicants were incurred in a specific and conclusive manner beyond the extent that the applicants’ assertion can be prevented.

Furthermore, in light of the fact that there is an urgent need to prevent damage, it is difficult to sufficiently prove that there was flood damage, such as flood damage, if the effect of each disposition stated in the purport of the application is not immediately suspended, it is difficult to view that there was sufficient vindication as to the occurrence of flood damage, etc. in the vicinity of the construction site or in the village market.

Therefore, this part of the assertion is without merit.

E) Damage such as destruction of ecosystem

Finally, this article deals with adverse effects on aquatic ecosystems, destruction of natural environment, infringement of environmental rights by future generations, and denial or destruction of history and culture by our people.

This part of the damage is not the personal damage of the applicant, but the damage of the public interest or the third party, so it does not constitute damage that is difficult to recover as a condition for suspension of execution.

Therefore, this part of the argument is without merit.

3) Sub-decisions

Therefore, it is difficult to deem that each disposition written in the purport of the application causes damage difficult to recover as alleged by the applicants, and that there is an urgent need to prevent such damage, and therefore, the above assertion by the applicants is

3. Conclusion

Therefore, all of the applicants' applications of this case are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hong-do (Presiding Judge)