(영문) 서울행정법원 2020.3.6. 선고 2019구합60134 판결

On December 28, 2018, the defendant confirmed that the approval to revise the execution plan for electric power resource development business against the defendant joining the defendant on December 28, 2018 is null and void.

○○ Preliminary Claim No. 1, and each Disposition No. 1 in the Schedule No. 2099, which was entered in the Schedule No. 1, on December 28, 2018, against the Defendant’s Intervenor’s Intervenor, is invalid.

○ 2 Preliminary Claim

On December 28, 2018, the Defendant’s disposition to revise the implementation plan for electric power resource development business against the Intervenor joining the Defendant on December 28, 2018.

○ 3 Preliminary Claim

On December 28, 2018, the defendant revoked each disposition listed in the list (attached Form 1) in the approval of any change in the execution plan for electric power resource development business concerning D business against the defendant joining the defendant.

Reasons

1. Details of the disposition;

A. Plaintiff A fishing village fraternity (hereinafter referred to as “Plaintiff A fishing village fraternity”) is a fishing village fraternity established and organized under the Fisheries Cooperatives Act with the jurisdiction of Gangseo-si E and F members in order to promote a joint project to improve the productivity of fishing village fraternities and to improve their living, and Plaintiff B is a person who is engaged in the fishery in the above area.

B. On June 27, 2014, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is an operator of the electric generation business jointly established by the South East Eastern Development Co., Ltd., G Co., Ltd. and H Co., Ltd., and a corporation that engages in the construction, management, and electric power sales business, etc. of electric power plants, and the Defendant is an administrative agency in charge of power generation business license and license in accordance with the Electric Utility Act and the Electric Power Source Development Promotion Act. On June 10, 2015, the Defendant approved the implementation plan of the “D business” (hereinafter referred to as the “instant business”), which is an electric power resource development business operator who constructs two electric power generation facilities in Gangnam-si I as a project operator, and announced it to the Ministry of Trade, Industry and Energy (hereinafter referred to as the “previous disposition”).

D. The permission to occupy and use public waters for the maritime construction area of the instant project was deemed to have been granted pursuant to Article 6(1)5 of the Electric Source Development Promotion Act, and the current status of the placement of the relevant public waters and surrounding maritime facilities is as shown in attached Form 2.

E. After December 28, 2018, the Defendant approved the change of the implementation plan of the instant project, which was applied by the Intervenor, and announced it to K publicly announced by the Ministry of Trade, Industry and Energy (hereinafter “instant disposition”). The details of the change of the area of occupation, use, etc. of the public waters related to the instant project, which is deemed through the instant disposition, are as follows. Specifically, the area of the public waters reduced by 16,137 meters (10m of direct occupancy and use + 16,036m of indirect occupancy and use reduction + 16,036m of indirect occupancy and use reduction), the electric water has increased by 1.12m/s, and the maritime observation equipment has been newly added to the maritime facilities. The current status of the installation of the relevant public waters and its neighboring maritime observation equipment (attached Form 3).

A person shall be appointed.

G. Meanwhile, the current status of the Plaintiffs’ fishery rights in the vicinity of the instant project area, which was licensed by the Gangnam Market for the purpose of complex cultivation, are as listed below: Provided, That among the fishery rights owned by the Plaintiff fishing village fraternity, those for communal fishing L and cooperative cultivation M were currently expropriated, and the compensation therefor was deposited.

A person shall be appointed.

[Reasons for Recognition] The facts without dispute, Gap evidence 1 through 4, 11, 12 (including the branch numbers in the case of provisional evidence), Eul evidence 1, Eul evidence 1 to 5, and the purport of the whole pleadings

2. Relevant statutes;

[Attachment 4] The entry is as follows.

3. Determination on the defense prior to the merits

A. Summary of the intervenor's assertion

Among the fishery rights owned by the Plaintiff fishing village fraternity, the term of validity of the license for communal fishing L and cooperative fish farming business expires, as well as the current status of each fishery right has expired due to expropriation ruling and compensation deposit. Therefore, the part concerning each of the above fishery rights among the lawsuits of the Plaintiff fishing village fraternity should be dismissed as there is no benefit of lawsuit.

B. Determination

1) At present, among the fishery rights owned by the Plaintiff fishing village fraternity, the term of validity of the license for communal fishing business L and cooperative fishing business M expires, and each of the above fishery rights was accepted, and the fact that the compensation was deposited is as seen earlier.

2) However, Plaintiff fishing village fraternity has not only each of the above fishery rights until now, but also each of the above fishery rights N and 0 adjacent to the business area of this case. Thus, even if the extinguished fishery rights are excluded, Plaintiff fishing village fraternity has standing to sue to seek nullification or revocation of the disposition of this case through other valid fishery rights. In this regard, Plaintiff fishing village fraternity asserted that there is no interest in the lawsuit regarding each of the extinguished fishery rights, but it is difficult to view Plaintiff fishing village fraternity’s claim as a form individually corresponding to each of the above fishery rights.

There is no interest in the lawsuit only for each portion of the extinguished fishing right, and there is no need to dismiss it.

3) Therefore, the Intervenor’s defense prior to the merits is without merit.

4. Whether the disposition of this case is legitimate (the plaintiff's main claim and each conjunctive claim are examined together).

A. Organization of issues

The Plaintiffs asserted that there exist 7 defects in the disposition of this case, and that the disposition of this case is null and void mainly due to the significant and apparent defects, and seek the confirmation or revocation of the invalidity of the part concerning the permission to occupy and use public waters during the disposition of this case. Accordingly, the Plaintiffs should first examine whether there exists any defects asserted by the Plaintiffs.

B. Determination as to the existence of defects

1) Whether permission for occupancy or use of public waters was granted by an unincorporated institution or not, the gist of the Plaintiffs’ assertion

Pursuant to Articles 4 and 8 of the Public Waters Management and Reclamation Act (hereinafter referred to as the "Public Waters Management and Reclamation Act"), the authority to change the occupation and use of public waters related to the instant project is located in Gangseo Mayor, which is the management agency of public waters.

Nevertheless, the Defendant, based on Article 6 of the Electric Power Development Promotion Act, issued a permit to occupy and use public waters under Article 8 of the Public Waters Act on the erroneous premise that a permit to occupy and use public waters is deemed to be granted through the instant disposition based on the instant disposition, and thus, constitutes an illegal disposition conducted by an

B) Determination

Article 6 (1) 5 of the Electric Source Development Promotion Act provides that "the electric source developer shall be deemed to have obtained permission for occupation and use of public waters under Article 8 of the Public Waters Act when he/she obtains approval for modification of the execution plan for electric source development business."

According to the above provision, where the defendant issued the instant disposition that constitutes approval for modification of the execution plan against the intervenor who is an electric power resource developer, it is reasonable to deem that the intervenor is deemed to have obtained permission for occupation and use of public waters pursuant to Article 8 of the Public Waters Act.

In this regard, the plaintiffs asserts to the effect that the intervenor is only an electric source developer under the Electric Utility Act and does not fall under the electric source developer under the Electric Source Development Promotion Act and does not fall under the electric source developer under the Electric Source Development Promotion Act and does not apply the legal provisions on authorization and permission under Article 6 (1) of the Electric Source Development Promotion Act. However, Article 3 of the Electric Source Development Promotion Act provides that "electric source development business shall be carried out by the electric source developer, etc. permitted under the Electric Utility Act." In addition, in light of the previous disposition confirmed

Therefore, in this case, the intervenor does not need to obtain a separate permission from the Gangseo-gu market, the management agency of public waters, and under different premise, this part of the plaintiffs' assertion is without merit.

2) Whether the procedures for hearing opinions of local residents, etc. are complied with

A) Summary of the plaintiffs' assertion

Since the instant disposition was additionally installed with ‘the prevention of erroneousness' and ‘marine observation equipment' as a new marine facility through the instant disposition, the intervenor should have proceeded with the procedures for hearing opinions in advance with respect to local residents, such as the plaintiffs, pursuant to Article 5-2(1) of the Electric Source Development Promotion Act. Nevertheless, the instant disposition is unlawful since such procedures have not been complied with.

B) Determination

Article 5-2 (1) of the Electric Power Source Development Promotion Act provides that "where an electric source developer intends to obtain approval for modification of the execution plan, he shall hear the opinions of the residents before applying for approval for modification," but the business area of the implementation plan is modified within the scope of 30/100 (No. 3)."

However, as seen earlier in the background of the disposition, the area of public waters changed through the instant project was reduced by about 1% from the original 1,498,850m to about 1,482,713m, and thus, in such cases, the intervenor need not undergo the procedures for hearing the opinion prior to the instant disposition pursuant to Article 5-2 (1) 3 of the Electric Source Development Promotion Act.

In this regard, the plaintiffs stressed that new maritime facilities have been installed, but it is not only the environmental impact facilities to reduce the proliferation of oil sand in the course of maritime construction, but also the temporary facilities scheduled to be removed after the construction, and also the ocean observation equipment is merely the equipment to observe the ocean physical phenomenon in the course of maritime construction. Therefore, it is difficult to view that the procedure for hearing opinions for local residents, etc. is necessary because the relevant facilities are installed and it cannot be seen that damage has occurred to local residents, etc.

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

3) Whether the notice of major changes in the instant disposition was omitted

A) Summary of the plaintiffs' assertion

The Defendant, at the time of the previous disposition, publicly announced the area of the instant project as a total of 1,096,180 square meters (=land 561,930 square meters + 534,250 square meters at sea + 534,250 square meters at the time of direct occupancy) and did not publicly announce the indirect occupancy portion of public

However, at the time of the instant disposition, the Defendant publicly announced a total of 1,143,640mi [the part directly occupied by the Plaintiff 609,491m + the part directly occupied by the Defendant 534,149m in the sea + the part directly occupied by the Plaintiff 534,149m in the part directly occupied by the public waters, and the part indirectly occupied by 948,584m in the part directly occupied by the Defendant. As such, at least the indirect occupied by the Defendant was publicly announced as included in the subject of a new disposition inasmuch as it is not subject to a new disposition because it was not publicly announced in the previous disposition, and in this case, the change in the occupancy and use of public waters in the indirect occupied part cannot be deemed deemed as an item. In addition, each fishery right in the instant business area owned by the Plaintiff at the time of the instant disposition was publicly announced without being included in the subject of the right to receive. This is also unlawful as it

B) Determination

(1) As seen earlier, pursuant to Article 6(1)5 of the Electric Source Development Promotion Act

If an implementation plan for electric power resource development business is approved, the permission for occupation and use of public waters under the Public Waters Act is deemed to have been granted. Therefore, even if there was no public notice on the indirect occupation and use of public waters at the time of the previous disposition, such as the plaintiffs' assertion, it is reasonable to deem that the permission for indirect occupation and use was already granted at the time of the previous disposition. As a result,

In this regard, even if indirect occupancy part is subject to disposition, the Plaintiffs asserts that the part directly occupied and used without excluding indirect occupancy part at the time of the disposition in this case is illegal. However, even if both the Electric Power Source Development Promotion Act and the Enforcement Decree of the same Act are examined, the indirect occupancy part cannot be deemed to fall under the electric power resource development project area itself, and thus, the Plaintiffs’ assertion cannot be accepted on a different premise.

(2) Next, examining whether there was an omission in the announcement of the change of rights by the Plaintiff fishing village fraternity in the instant disposition, it is doubtful whether it is necessary to include each fishery right within the instant business area owned by the Plaintiff fishing village fraternity in the list of the rights to be expropriated. 4) Furthermore, as to the fact that each fishery right was expropriated on March 6, 2019 through the procedure of the adjudication of expropriation, etc., since no agreement was reached after the previous disposition on compensation for losses was made on each fishery right after the previous disposition, the parties cannot be deemed to constitute an unlawful cause even if there was no dispute.

(3) Therefore, this part of the plaintiffs' assertion is without merit.

4) Whether there exist unlawful grounds for the establishment of the period of permission for occupation and use of maritime facilities or the gist of the plaintiffs' assertion

Article 11 of the Public Waters Act limits the period of permission for occupation and use of public waters, and "the period of permission" refers to the period in which it is permitted to occupy or use public waters, which is not the period of occupation or use of public waters as a practical system.

In the previous disposition, the Defendant set the period of permission for occupation and use from October 29, 2015 to October 29, 2045, and from October 29, 2015 to October 29, 2020 to October 29, 2020. However, in the subsequent disposition of this case, the period of permission was changed into the period of permission until December 28, 2049 to the breakwater, etc. (the breakwater, etc.) and December 28, 2023, the Defendant set the period of permission beyond the period of restriction. This is against Article 11 of the Public Waters Act.

B) Determination

Article 8 of the Public Waters Act provides that the period of permission for occupation and use of public waters shall be limited to each act. In other words, Article 11 of the Public Waters Act provides that the period of permission shall be 30 years if a wharf, breakwater, bridge, floodgate, new and renewable energy facilities, a building or other similar solid artificial structure is installed (Article 11 Subparag. 1), 15 years if a person intends to install other artificial structure (Article 11 Subparag. 2), and Article 8(1)2, 3, and 5 through 11 of the Public Waters Act.

As above, the Public Waters Act classified the permission period by taking into account that the period ordinarily required for the occupancy and use of public waters varies depending on the nature of the act accompanying the occupancy and use of public waters. In light of the form, content and purpose of these laws, the "permission period" under Article 11 of the Public Waters Act should be considered as the "period for the person who obtains permission to occupy and use the public waters subject to the permission". If the "permission period" is considered as the "period for the occupation and use of the public waters permitted" as alleged by the Plaintiffs, as in the instant case, if the commencement of an act requiring the permission is delayed due to the change of the business plan, etc., the project operator cannot perform the necessary act due to the restriction of the permission period, thereby hindering the implementation of the project. Therefore, the Plaintiff's assertion on the interpretation of the "permission period" cannot be accepted.

On the other hand, Article 8 of the Public Waters Act permits the change of the period of occupation and use by allowing the change of the management agency of public waters if the person who has obtained permission for occupation and use intends to change the matters prescribed by Presidential Decree such as the period of occupation and use.

Therefore, even if the period of occupancy and use of each facility prescribed in the previous disposition was modified by the instant disposition, and accordingly, it is natural to view that the period of validity of the previous disposition was changed to a date after the date prescribed in the previous disposition, in light of the purpose and purport of the establishment of the period of validity. As long as the period of permission prescribed in the instant disposition does not exceed the period of restriction on occupancy and use related to each facility, it cannot be deemed that the instant disposition violates Article 11

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

5) Whether prior consultation procedures are complied with

A) Summary of the plaintiffs' assertion

Since fishery damage is anticipated to occur to nearby public waters in the instant project zone through the instant disposition, the Defendant must undergo prior consultation with the head of the relevant administrative agency, such as the Minister of Oceans and Fisheries, in addition to Gangseo-si. Nevertheless, the Defendant was illegal since it did not undergo such prior consultation

B) Determination

According to Article 8(5) and (3) of the Public Waters Act, where the management agency of public waters intends to change permission to occupy and use public waters, it shall consult with the head of the relevant administrative agency in advance, as prescribed by Presidential Decree. In this regard, Article 7(2) of the Enforcement Decree of the Public Waters Act provides that "where fishery resources and fisheries damage are anticipated due to permission to occupy and use public waters, the Minister of Oceans and Fisheries shall include the Minister

However, as seen earlier, the area of permission to occupy and use public waters through the instant disposition is not only decreased but also the 'debris prevention prevention' and 'marine observation equipment' are added to the purpose of preventing fishery damage.

Therefore, it cannot be deemed that fishery resources and fisheries are expected to be damaged through the instant disposition, and there is no evidence to acknowledge it, and thus, prior consultation procedures are not required. On a different premise, this part of the plaintiffs' assertion is without merit.

6) Whether sea area utilization consultation procedures are complied with

A) Summary of the plaintiffs' assertion

Through the instant disposition, since the area permitted to occupy and use public waters has increased from 534,250m to 1,482,713m of square meters, the intervenor was illegal because the intervenor did not go through the procedures for consultation on the use of sea areas pursuant to Article 94(1) of the Marine Environment Management Act, although the area permitted to occupy and use public waters has increased from 5

B) Determination

According to Article 94(1) of the Marine Environment Management Act, when a sea area user modifies a business plan after obtaining a license, etc. from a disposal agency, sea area utilization consultation procedures shall be followed, but if the changed business scale is prescribed by Presidential Decree as the impact on the marine environment is insignificant, it is not necessary to resume sea area utilization consultation procedures. However, Article 70(2)1 of the Enforcement Decree of the same Act provides that "if it is not necessary to undergo sea area utilization consultation procedures again, the business size is reduced

Although the plaintiffs asserted to the effect that the permitted area of occupation and use of public waters has increased through the instant disposition, it is merely a wrongful premise that the permitted area of occupation and use of public waters is only the part directly occupied and used in the previous disposition, and as seen earlier, indirect part of occupation and use through the previous disposition falls under the permitted area, and rather, it is clear that the permitted area of occupation and use of public waters has decreased directly from the original 1,498,850m of square meters of occupation and use through the instant disposition (=250m of square + indirect occupancy + 964,60m of occupancy and use) to 1,482,713m of direct occupation and use, 534,149m + indirect occupancy and use + 948,564m of indirect occupancy and use).

Therefore, since this falls under a case where the scale of business is reduced, it is not necessary to re-undertake the procedures for consultation on the use of sea area at the time of the instant disposition. This part of the plaintiffs' assertion is without merit.

7) Whether the plaintiffs' consent to the change in the occupancy and use of public waters is defective

A) Summary of the plaintiffs' assertion

The intervenor should have obtained consent from the right holders who are expected to suffer fishery damage, such as the plaintiffs and should have proceeded with the procedure related to the disposition of this case. Nevertheless, the disposition of this case conducted without the consent procedure is unlawful.

B) Determination

According to Article 12 of the Public Waters Act, the management agency of public waters shall not grant permission where it fails to obtain consent to occupancy or use of the relevant public waters from a person who has a right likely to suffer damage when granting permission for occupancy or use.

However, there is no dispute between the parties regarding the fact that the consent procedure under Article 12 of the Public Waters Act was made to the fishery right holders in the vicinity of the instant business area, including the plaintiffs in the previous disposition

Although the Plaintiffs asserted that new fishery damage is expected through the instant disposition, considering all of the following factors: (a) the amount of permission for occupation and use of public waters decreased due to the instant disposition; (b) new maritime facilities are installed to prevent fishery damage; and (c) the fishery rights in the instant business area owned by the Plaintiff fishing village fraternity are already expropriated, it is difficult to view that the Plaintiffs constitute the right holder who is likely to newly incur fishery damage through the instant disposition.

Therefore, even if the Intervenor did not obtain a separate consent from the Plaintiffs at the time of the instant disposition, it cannot be deemed unlawful. On a different premise, this part of the Plaintiffs’ assertion is without merit.

C. Sub-committee

It is difficult to see that the defects alleged by the plaintiffs in the instant disposition exist, and there is no other reason for illegality. Ultimately, the instant disposition is lawful.

5. Conclusion

The plaintiffs' primary claim and each conjunctive claim are without merit, and they are all dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges

The presiding judge, judges and assistant judges;

Judge Han-hee

Judges Park Young-young

Note tin

1) For reference, the plaintiffs separate only the permission for occupation and use of public waters and the approval for modification of the implementation plan deemed to be subject to the above approval for modification.

Under the premise that invalidation or cancellation is possible, claims such as the claim of the first and third preliminary claim are sought.

2) As reference, the Plaintiff was also subject to the instant disposition, such as the entry in [Attachment 1] List 2, and the modification of the implementation plan for occupation and use of public waters.

They also seek confirmation of invalidity or revocation of the disposition. However, the above part of the modification is examined below.

Unlike the change of the occupation and use of public waters, the plaintiffs do not claim any special reason for illegality.

3) However, with respect to the instant business, it appears that the land area increased from 561,930 square meters to 609,491 square meters, but, with respect to the instant business, the evidence Nos. 11 and A1

The plaintiffs shall seek opinions pursuant to Article 5-2 (1) of the Electric Power Development Promotion Act due to the change in the area of public waters or the installation of maritime facilities.

It is argued that the procedure is necessary, and the area of the land is increased by about 10%, which is therefore, the hearing of opinions.

Vehicles shall not be considered as necessary.

4) Even if the Ministry of Trade, Industry and Energy’s announcement regarding the implementation plan for another electric power resource development business is examined, “detailed description of land to be expropriated or used” portion.

No matter related to the right of fishery claimed by the plaintiffs is found in the public notice (see Evidence No. 11, No. 11, No. 1).