(영문) 서울행정법원 2019.5.3.선고 2018구합50802 판결

1. All of the plaintiffs except the plaintiffs A, B, C, D, and E among the instant lawsuits are dismissed. 2. All of the plaintiffs' claims are dismissed.

3. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

Purport of claim

The permission for the alteration of the current state of State-designated cultural heritage granted by the Defendant to the Yangyang-gun on November 24, 2017 shall be revoked.

Reasons

1. Details of the disposition;

A. On March 201 and February 2012, the Yangyang-do head of Yangyang-do (hereinafter referred to as "Yyang-do head of Yangyang-do") issued an application for change of the plan for the National Park of Taesan (1 and 2 vehicles) with the Minister of Environment (hereinafter referred to as the "Yansan-do head of Yangyang-do") including the addition of one cable in the Seosansan-do National Park. However, on July 2, 2012 and October 8, 2013, the head of Yangyang-do issued a disposition of refusal on the imposition of the plan. The head of Yangyang-do selected three alternative routes for 16 routes which are able to install the cable among the Namsan-do areas on the basis of environmental protection values and win-win realization with the region. After examining the environmental, technological construction and economic feasibility, the head of Yangyang-do (hereinafter referred to as the "Yansan-do head of Yangyang-do") decided to install the cable (3.5 km and 18.3 hereinafter the same shall apply).3.38.

B. As a result of the discussion at the 113th National Park Committee on the said third amendment, on August 28, 2015, seven conditions were attached thereto as indicated below, and the Minister of Environment passed a resolution on September 14, 2015, and on September 2, 2015, the Minister of Environment announced the alteration announcement of the plan for the Dasan National Park (No. 2015-180 of the Ministry of Environment Notice) (No. 2).

4. Park facilities plan: Positive map among general transportation facilities: One to two new roads; (b) the summary transportation facilities and transportation facilities of the park facilities to be modified from one route to two routes: 1) the area of 1.2km (2km), Seoak-dong, Seoak-dong, Seoak-dong, Seoak-dong, Seoak-dong, 1.2km (2) the area of the right to use the Seoak-dong, Seoak-dong Park (2) the 466th end of the 46th end of the 466th end of the park plan (newly 3.5m at the end of the 466th end of the 46th end of the 196 end of the park plan), the additional investigation into the problems of strengthening the measures to protect endangered species and the safety measures for the facilities to protect endangered species and to prepare a post-management monitoring system (the preparation of a mine, fluorial storm)-Post management monitoring system (the composition of a guest committee).

C. Pursuant to Article 22(1)7 of the Environmental Impact Assessment Act and Article 31(2) [Attachment 3] 7 of the Enforcement Decree of the same Act, the head of Yangyang-gun conducted an environmental impact assessment on the construction project of the instant cable railways (hereinafter “instant project”), and the environmental impact assessment was prepared on July 2016 and submitted to the Gyeongyang-gu Regional Exchange Administration.

D. On July 20, 2016, the Yangyang head of the Gun filed an application for permission for change of cultural heritage phenomenon pursuant to Article 35(1) of the former Cultural Heritage Protection Act (amended by Act No. 15065, Nov. 28, 2017; hereinafter the same shall apply) to install the instant cable within the “natural protection zone for the 171st natural monument”. However, as a result of an in-depth analysis by organizing sub-committees for each field, such as animal, plant, geological, and landscape, on the ground that it is judged that the impact of cultural heritage on the instant cable construction and operation on the cultural heritage is significant due to the instant cable construction, operation, etc., the details of the application were rejected by the head of the Gun on the ground that the aforementioned application for permission was rejected on the ground that the amendment was rejected at the time of construction of the current state of the cable at issue (hereinafter the same shall apply).

In the field of animal: Noise is anticipated to cause the deterioration of the habitats of wild animals, including the quantity of noise and vibration for blasting and helicopter operations, etc. for the construction of the instant cable railways, and in particular, as a result of the survey on the development of mountain villages between the last one year, there is a large number of population of mountain habitats and the suitability of habitats, so that there is a large impact on the habitats environment and breeding activities, and that there is a narrow range of behavioral radius. ② In the field of plant, it is anticipated that there is a significant possibility of intrusion into alien species (plant and hospital germs) in the natural protection area.Third, the area of the installation of the instant cable railway is highly preserved as useful evidence in understanding the global erogrative stage such as melting and erosioning, and in particular, the area of the installation of the instant irregular erogratories is likely to be considerably damaged by the installation of the landscape at the end of the erogrative zone and the installation of the new erogrative zone.

E. The two heads of Yangyang-gun actively stressed on the promotion of the utilization of cultural heritage and the extension of cultural enjoyment rights in the five-year master plan for the preservation, management, and utilization of cultural heritage (2012-2016). On March 3, 2017, the National Park Committee discussed on June 15, 2017 by the nine ministries and agencies of the government. The National Park Committee, which was discussed on June 15, 2017, approved the amendment of the plan (3rd) on the condition of the establishment, etc. of the post-management bank after comprehensively examining the impact of the project in this case on the project section. In addition, the National Park Committee, which was presented in accordance with the former Cultural Heritage Protection Act, actively emphasizes on the purpose of the policy and improvement of the five-year master plan for the preservation, management, and utilization of cultural heritage and the extension of cultural enjoyment rights, the defendant did not properly consider the aspect of the utilization of cultural heritage and suggested the following decision as a project of the National Cultural Heritage Committee.

① In the field of animal: The number of props of the instant cable railways is six, average height, 40 meters, and average distance per week is about 52 meters, and it is difficult to view that there is a big obstacle to the avoidance of movement in mountain. In the case of construction, measures for reducing noise, such as installation of temporary soundproof Board, vibration method, noise reduction device, etc. are installed at the time of construction. The Administrator of the Cultural Heritage Administration grants permission for the alteration of the current state to the earth king observation team and visiting paths on August 26, 2015, even though he stated that the maximum form of the mountain is one of the main habitats of solar, e.g., mountain village, which is different from previous research data or previous arguments, and it is inconsistent with the view that there is a difficulty in entering the instant area to conclude that the area is the 1st place of animal culture and environment or that there is a difficulty in recovering noise from the ground by taking advantage of the fact that there is a difference in the overall habitats of solar mountain, which is likely to cause damage to the first-class, etc.

Since it is an closed facility that can not move to the UNESCO, a plan for installing a UNESCO-style vibration and smelting girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative grative grative grative grative grative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative girrative grative girrative grative grative gr.

F. On November 24, 2017, the Defendant notified the Yangyang-si of the conditional permission for the alteration of the present state of the construction of the instant cable railways in the natural protection zone of the Taesan-do (hereinafter “instant disposition”).

A person shall be appointed.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 5 (including branch numbers, hereinafter the same shall apply) and the purport of whole pleadings

2. Whether the lawsuit of this case is lawful

A. The Defendant’s defense prior to the merits

Since there is no legal interest in seeking cancellation of the disposition of this case against the plaintiffs, the lawsuit of this case is unlawful.

B. Determination

1) Relevant legal principles

Even if a third party who is not the direct counter-party to an administrative disposition, is entitled to file a revocation lawsuit where the legal interests protected by the administrative disposition are infringed, but the legal interests are protected by the law. However, the legal interests refer to the individual, direct, and specific interests protected by the applicable laws and regulations of the pertinent disposition and the series of phased dispositions in order to achieve the administrative purpose of the pertinent disposition (hereinafter referred to as the "related laws and regulations"), and it does not include cases where a person has a factual and economic interests, such as the general, indirect, and abstract interests commonly held by the general public as a result of protecting the public. In addition, the legal interests protected by the pertinent laws and regulations and relevant laws and regulations include not only the legal interests protected by the applicable laws and regulations (including the case where the relevant laws and regulations are applied by citing other laws and regulations), but also the grounds and relevant laws and regulations are not explicitly protected by the relevant laws and regulations, but also the specific interests are included in the interpretation of the relevant laws and regulations and the reasonable interpretation of the relevant laws and regulations.

2) Acknowledgement of legal interest based on cultural heritage right

According to Article 35(1)1 of the former Cultural Heritage Protection Act, changing the current state of State-designated cultural heritage shall obtain permission from the Administrator of the Cultural Heritage Administration. According to Article 36 of the same Act, the Administrator of the Cultural Heritage Administration does not affect the preservation and management of cultural heritage, and does not damage the historical and cultural environment of cultural heritage, and only when an act subject to an application for permission meets the annual implementation plan under Article 7 of the same Act. The legislative purpose or purpose of the above is to protect the interests of local residents or the general public as public interest, and is not to directly and specifically protect the interests of the enjoyment of cultural heritage of a specific individual. Accordingly, it is difficult to deem that the Plaintiffs’ legal interest is recognized under the former Cultural Heritage Protection Act.

3) The recognition of legal interests based on environmental rights

A) The purport of the disposition, where an environmental impact assessment is conducted under the relevant laws and regulations or relevant laws, is to protect individual interests that can live in a pleasant environment without being subject to the environmental limit compared to the previous convictions that the residents in the area subject to the environmental impact assessment, etc., which is anticipated to cause direct and significant environmental damage. Thus, the above environmental benefits held by the above residents in relation to the pertinent disposition are direct and specific interests that are individually protected by the residents, and barring special circumstances, it is presumed that such dispositions are likely to cause an infringement or infringement on the environmental interests due to the dispositions, and the standing to sue to seek cancellation of the disposition is recognized (see, e.g., Supreme Court en banc Decision 2006Du330, Mar. 16, 2006). Moreover, it may be presumed that the residents who are highly likely to be included in the area subject to the environmental impact assessment, etc., may also be presumed to have infringed or infringed on the environmental interests (see, e.g., Supreme Court en banc Decision 2006Du1401, Dec. 222, 36.

B) The instant project constitutes a construction project of a private road, the length of which is not less than 2 kilometers in length (such as transporting people or freight by hanging a track on a fishing line installed in the public) under Article 22(1)7 of the Environmental Impact Assessment Act and Article 31(2) [Attachment 3] 7 of the Enforcement Decree of the same Act.

C) The facts that Plaintiff A, B, C, and D are residents of Yangyang-gun are either parties to dispute or may be acknowledged by the purport of the entire pleadings. Therefore, the above Plaintiffs are included or likely to include in the instant project within the area subject to environmental impact assessment, etc. that is likely to cause environmental pollution. Therefore, it is presumed that the environmental interest is likely to be infringed due to the instant disposition.

D) According to the overall purport of evidence Nos. 7, 8, and 9, Plaintiff E is not a resident of Yangyang-gun. However, since 1992, Plaintiff E is a means of self-realization and self-realization of the protection of animals and plants living in Taeyang-gun, such as the conservation of natural landscape and quantity of mountain, etc., from the 1992 to the present, and it can be recognized that the circumstances where Plaintiff used his daily life for his activities to visit and protect against the residents in the area subject to the environmental impact assessment while carrying out various activities related thereto. Thus, it is reasonable to deem that the above Plaintiff was likely to have suffered special mental satisfaction or happiness through the protection of lussan natural landscape and animals and plants, and that the above Plaintiff could have suffered infringement on environmental interests due to the instant disposition.

E) However, it is difficult to deem that the remaining plaintiffs are residents of bothyang-gun and are likely to cause environmental damage exceeding the tolerance limit in comparison with their previous dispositions, and they have proved that there is a possibility of infringing or infringing on environmental interests. The above plaintiffs asserted that there is legal interest on the ground that Article 23(2)4 of the Natural Parks Act provides that permission for acts may be granted only when the use of the general public is not significantly hindered. However, the above provision is intended to protect the general public who are likely to use a park, and it is difficult to interpret the provision to protect the individual, direct, and specific interests of a specific individual.

4) Sub-committee

With respect to Plaintiffs A, B, C, D, and E, even though they are legally interested in seeking the revocation of the disposition of this case, they cannot be recognized against the rest of the Plaintiffs (in the case of Plaintiff F, there is no evidence to find that the Plaintiff constitutes a non-corporate body, etc. with the capacity to be a party under the Administrative Litigation Act, and even if the Plaintiff had the capacity to be a party as a non-corporate body, there is no evidence to deem that the Plaintiff had gone through the general assembly, etc. required for the filing of the lawsuit of this case ( even if the seal affixed on the delegated list is unclear

3. Whether the instant disposition is lawful

A. Plaintiffs A, B, C, D, and E (hereinafter referred to as “Plaintiffs”);

After the ruling of this case, the Defendant rejected the proposal to modify the cultural heritage phenomenon through a faithful review by the Cultural Heritage Committee, but did not comply with the resolution of the Cultural Heritage Committee, and reached the instant disposition pursuant to the ruling of this case without any further research or investigation. Therefore, the instant disposition should be revoked as illegal.

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination

1) Relevant legal principles

Unlike the judicial review of an administrative act that constitutes a discretionary act, the judicial review of an administrative act is not based on the discretion of the administrative agency, taking into account the existence of a public interest judgment based on the discretion of the administrative agency, and is not based on the court’s independent conclusion, and only review of whether such an act is a deviation or abuse of discretionary power. The examination of whether such a deviation or abuse of discretionary power is subject to determination of facts, violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decision 2004Du6181, Jul. 14, 2005). As regards such deviation or abuse of discretionary power, a person who disputes the validity of such administrative act bears the burden of proof (see, e.g., Supreme Court Decision 87Nu861, Dec.

Determination of conformity with the requirements for permission of a project affecting the environment requires broad discretion of the administrative agency as a matter of public interest, and when examining whether there is deviation or abuse of discretionary power in relation to the determination of conformity with such requirements, it shall be made carefully by taking into account the natural environment and the living environment of the residents in the relevant region, the balance of rights and interests among the interested parties having conflicting interests, and the legislative purport of various regulations on the protection of environmental rights. Therefore, the discretionary determination of an administrative agency on the requirements for prediction of uncertainty and ripple effect that may arise in the future, such as “an impact on the environment” need to be widely respected unless there are circumstances such as where the content is considerably unreasonable or where it is clearly contrary to the principle of equity or proportionality when compared with other interests or values (see, e.g., Supreme Court Decision 2017Du46783, Oct. 31, 2017).

2) Specific determination

In light of the circumstances, such as the evidence of evidence Nos. 1, 2, 3, 6, and 1 through 11, the evidence submitted by the plaintiffs alone is insufficient to deem that the judgment of the defendant in the instant disposition, which was granted the conditional permission of the instant business, is considerably unreasonable, or that it was proved that it was abused or abused by clearly violating the principle of equity or proportionality, and there is no other sufficient evidence to acknowledge it.

A) The Plaintiffs asserted that the main habitats of the mountain village would be damaged and the number of population would be reduced due to the instant cable railways, and based on which, “the fact-finding survey on the development of the mountain mountain mountain nature protection zones of the Cultural Heritage Administration published on December 2, 2016.” However, G doctoral and H professor’s opinion, “the advisory opinion prepared by G doctoral and H professor,” and “the comprehensive review report of the Specialized Committee on the Private Sector for the Projects for the Pilot of the Cable Railroad in Musan National Parks ( August 28, 2015)” cannot be predicted that the instant cable would have an adverse effect on the growth and reproduction of mountain mountain.

B) The Plaintiffs asserts that there is a significant possibility of intrusion on alien species (plants and hospital germs) within the natural protection zone. However, the advisory opinion prepared by the I professor is deemed to have been properly established as a measure to block entry of alien species on the condition that it was added to the instant disposition.

C) The Plaintiffs asserts that the evidence useful to understand the global equition phase is well preserved, and that the area planned to install the instant cable railway has developed in the area planned to install the said cable railway. However, there is no objective data to recognize that the area planned to install the said cable railway was assessed as having high geological value in the national park located in the Neosan National Park, or that it falls under the area developed by the Neosan National Park, and that there is no objective data to recognize that the area planned to install the said cable does not fall under the area developed by the Neosan National Park. “The e.g., [No. 1] and the basic academic research report for the certification of the Neosan National Geopark,” etc. do not follow the Plaintiffs’ assertion.

D) Although the plaintiffs asserted that the cable railway of this case would damage natural landscape, according to the "Scenic Impact Review Report prepared by the Yangyang-si around December 2016", the view impact of the landscape change seems to have been relatively less psychologically and relatively low, and it seems possible to minimize the impact of the landscape by utilizing the existing damaged field routes to the maximum extent possible.

E) The Plaintiffs asserted that the instant cableway installation area constituted the core area for the conservation of biological rights, category Ia, and thus, should not be installed. However, there is no objective evidence to support the circumstance that the instant cableway installation area was designated as category la, or that the installation of cable railways is absolutely prohibited in category Ga area.

F) On August 24, 2017, September 14, 2017, and September 9, 2017, and March 21, 2017, the Defendant held a meeting of the Review Committee related to the alteration of the current state of the construction of the instant cable railways, and reviewed the grounds for rejection again if there are other reasons despite the binding force of the instant ruling. However, the Defendant focused on other reasons for rejection. However, as it was difficult to find such reasons, it was intended to review the measures to attach additional clauses that can minimize the impact on cultural heritage and to permit the alteration of the current state of cultural heritage. On November 7, 2017, the Defendant held the Advisory Council on the preparation of measures to reduce the development of cultural heritage due to the construction and operation of the instant cable, and issued the instant disposition by attaching additional clauses.

G) The installation of the instant cableway has the effect of promoting public interest by expanding the opportunities for users of the elderly, the elderly, and the disabled to access and enjoy the National Park in Yansan National Park. Therefore, for the public interest promoted as above and the appropriate balancing of the public interest and private interests infringed by environmental destruction, the contents and degree of the impact of the instant cableway on the environment should be carefully predicted and compared. As such, under the circumstances where it is difficult to deem that the instant cableway has adverse impact on the environment or it exceeded the permissible limit of admission by objective data, the Defendant issued a disposition of the instant cable, with a view to minimizing the environmental impact of the instant cable, by sufficiently reviewing according to the modified and publicly notified plan, and attaching an additional note to minimize the impact on the environment.

H) Even if the Defendant did not additionally conduct an investigation or analysis on environmental impacts after the instant ruling, or did not follow a resolution again made by the Cultural Heritage Committee after the instant ruling was rendered, it is difficult to deem that such reasons alone exceeded and abused discretionary power.

4. Conclusion

If so, all of the plaintiffs in the lawsuit of this case except plaintiffs A, B, C, D, and E are dismissed, and the claims of plaintiffs A, B, C, D, and E are all dismissed as it is without merit. It is so decided as per Disposition.

Judges

For the transfer of judge;

Judges Lee Lee Jae-chul

Judge Powers Governing Authority

Note tin

1) Attached 2 Map 2 is hereinafter referred to as “prearranged area for the installation of the cable railway in the instant case” with the 3rd (mam-spath) display section.

2) A lawsuit seeking revocation of a disposition to revise the plan for the Nansan National Park under the above notification was instituted by the Seoul Administrative Court No. 2015Guhap13079, Jan. 31, 2019

Seoul High Court Decision 2019-37501, which is currently pending in the appellate court.

is the same.

참조조문

-환경영향평가법 제22조 제1항 제7호

-환경영향평가법 시행령 제31조 제2항