(영문) 서울행정법원 2018.10.25. 선고 2017구합60659 판결

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Cases

Plaintiff (Appointed Party)

Plaintiff

Defendant

Intervenor joining the Defendant

Conclusion of Pleadings

Imposition of Judgment

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(영문) 서울행정법원 2018.10.25. 선고 2017구합60659 판결

전기사업허가처분취소

Cases

2017Guhap60659 Revocation of a disposition of electric utility license

Plaintiff (Appointed Party)

Plaintiff

1. B

2. C

3. D;

4. E.

5. F;

6. G.

7. H;

8. I

9. J;

10, K

11. L.

12. M;

13.N

14.O;

15. P;

16. Q.

17.R

18, S.

19. Telecommunication

[Defendant-Appellant] Gangnam-gu, Counsel for defendant-appellant

Attorney Cho Jae-ok

Defendant

The Minister of Trade, Industry

Intervenor joining the Defendant

U.S. Stock Company

Law Firm LLC, Attorney Park Jae-soo

[Defendant, Appellee]

Conclusion of Pleadings

August 16, 2018

Imposition of Judgment

2018.25

Text

1. All of the lawsuits by the plaintiffs (including the appointed parties) are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, shall be borne by all the plaintiffs (including the appointed parties).

Purport of claim

The Defendant’s disposition of granting power generation license to the Intervenor joining the Defendant on December 1, 2016 is revoked.

Reasons

1. Details of the disposition;

A. The Plaintiffs (Appointeds) and the rest of the Plaintiffs (hereinafter collectively referred to as “Plaintiffs”) and the designated parties listed in Appendix 1 are residents of Chungcheongnam-nam V.

B. On June 8, 2016, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) filed an application for permission for the following electrical business (hereinafter referred to as the “instant business”) with the Defendant in order to build power plants using solid fuels (SRF, Solid Refuse Fuel, packing plastic products, etc. of foodstuffs) new and renewable energy:

1. Type of business: 2. Place of the electric generation business: W. 3. Matters concerning the electric facilities for the electric utility of the electricity business: Chungcheong-do, Chungcheongnam-do, and two parcels;

C. On August 31, 2016, the Defendant rejected the Intervenor’s application for permission for the instant project on the ground that the Intervenor satisfied the criteria for permission for the instant project, but it is deemed difficult to implement the project in light of the local governments and residents’ extreme oppositions. (hereinafter “disposition on the return of the instant project”).

D. On September 8, 2016, the Intervenor filed an administrative litigation against the Defendant seeking the revocation of the preceding return disposition (Seoul Administrative Court 2016Guhap74743), and the above court, on December 12, 2016, Article 7(5)2 and (6) of the Electric Utility Act, and Article 7(3)1 of the Enforcement Rule of the Electric Utility Act, provide that “the level of acceptance of the area prearranged for the construction of electric equipment is high” as the criteria for the examination of “it shall be possible to implement the electric business according to the plan” among the criteria for the permission of the electric business, and it is reasonable to interpret “the extent of demand for the electricity of the area planned for the construction of electric equipment.” However, the Defendant’s rejection of the preceding disposition on the grounds that “the local residents’ opposition” did not meet the criteria for the foregoing examination, and the Defendant’s rejection of the judgment by 200 local residents’ dissenting opinions cannot be seen as being objectively acceptable.

E. According to the prior judgment, the Defendant presented the issue of whether to permit the instant project to the Intervenor on December 22, 2016 as the deliberation agenda of the Electrical Affairs Commission under the Defendant’s jurisdiction (hereinafter “the instant committee”), and the instant committee appears to have satisfied the criteria for the examination of the permission in light of the reasons for the judgment on the preemptive action, and the environmental issues raised by local residents (e.g., discharge of multi-households, dust, noise, etc. due to the incineration of plastic plastics, etc.) cannot be confirmed at the project permission stage of the instant case, and it is desirable to separately discuss and supplement the instant deliberation at the stage of permitting the development activities of the local government itself based on the detailed design plan after the instant project permission.

F. On December 28, 2016, the Defendant permitted the instant project on the following grounds: “SF” for the business place outside W and two parcels, “new regeneration [high fuel (SF), facility capacity, 9.9mW, supply voltage 22.9kV, radio frequency 60 Hz, and business preparation period from the date of permission” until June 2019 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

A. According to Article 39(2) of the Enforcement Decree of the Electric Utility Act, when intending to convene a meeting, the Chairman of the Electrical Affairs Commission notifies each member in writing seven days before the date of the meeting, but the Committee distributed the agenda related to the intervenor on the day of the meeting. Since there is no circumstance to deem that the agenda is urgent or inevitable, the instant disposition is unlawful.

B. In light of such circumstances, the Intervenor’s assembly and demonstration against most local residents on a heat-combined power plant that intends to be established as the instant project. Considering the criteria for permission under Article 7(5) of the Electric Utility Act, the instant project shall not be deemed to meet the “high level of accommodation of the area planned for the construction of electric facilities” under Article 7(3)1 of the Enforcement Rule of the Electric Utility Act, which is the criteria for examination of “(Article 7(5) of the Electric Utility Act”). In this case, the term “admission” refers to the consent of local residents, etc., but the prior disposition was revoked by erroneously interpreting it as the “level of demand for electricity,” and thus, the instant disposition in accordance with the purport of the previous judgment is unlawful. In light of the fact that the instant committee’s rejection or resolution is contrary to the criteria for permission for the electric power generation business, it is also contrary to the principle of equality.

C. The Intervenor submitted to V a written consent of 4,370 copies of the resident consent to the attraction of a heat-combined power plant to the V, and the instant disposition was made by submitting the above documents to the Defendant. The written consent of the said resident was made by receiving the signature without the consent of the resident who was kept in his/her custody at his/her discretion or without notifying the content accurately. As such, the instant disposition based on such data is unlawful.

D. The essence of solid fuels (SSF) scheduled to be used in a thermal power plant to be constructed pursuant to the instant project is wastes, and the Enforcement Rule of the Act on the Promotion of Saving and Recycling of Resources amended around January 2013 included them in renewable energy, thereby causing serious social conflicts over the current concerns over environmental pollution, etc. As the STRF discharges various harmful substances, such as tea, heavy metals, dust, etc., and causes irrecoverable environmental pollution to the large part of the Plaintiffs’ residence, the instant disposition is unlawful.

3. Relevant statutes;

Attached Form 2 is as shown in the relevant statutes.

4. Determination on this safety defense

A. The argument of the defendant and the intervenor

The instant disposition is a license for the construction of electric power plants based on Article 7 of the Electric Utility Act, and only recognizes that a person who intends to operate the electric utility business is eligible to operate the electric power plant at a specific place, and does not allow the said disposition to build the electric power plant. Therefore, the relevant statutes do not provide that the electric power resource developer shall obtain consent from neighboring residents for the instant disposition or undergo environmental impact assessment, but only when the electric power resource developer after the instant disposition obtains permission for development activities from the head of a Si/Gun or establishes an execution plan for electric power resource development business and obtains approval from the defendant, the hearing

Thus, there is no specific interest that can be protected by the relevant laws or regulations on the disposition of this case against the plaintiffs and the designated parties who appear as neighboring residents of the prospective project site of this case. Thus, there is no standing to institute the lawsuit of this case against the plaintiffs.

B. Determination

A person who is not the direct counter-party to an administrative disposition and seeks the cancellation of his/her own interest for the reason that his/her own interest is or is likely to be infringed upon by the administrative disposition shall be acknowledged as standing to sue to prove that his/her own interest is protected individually, directly, and specifically by the relevant laws and regulations or the relevant laws and regulations: Provided, That in cases where the relevant laws and regulations or the relevant laws and regulations specifically stipulate the scope of the right to influence that the project would be affected by the environmental infringement, such as the act done by the administrative disposition, etc., the residents within the affected area may expect that the relevant administrative disposition would cause direct and serious environmental damage. Such environmental benefits are directly and specifically protected to the individual residents, and such environmental benefits are recognized as standing to sue by being presumed to be, unless there are special circumstances, to be a concern about infringement or infringement of the environmental interest, and the other residents outside the affected area shall prove that the environmental interest has suffered or is likely to suffer environmental damage exceeding the permissible limit prior to the disposition, and shall be recognized as legally protected interests (see, e.g., Supreme Court Decision 2009Du284.

In the instant case, in light of the following circumstances, comprehensively considering the relevant Acts and subordinate statutes, including the Electric Utility Act and the Electric Power Source Development Promotion Act, the Plaintiffs and the designated parties, who are not the direct parties to the instant disposition, are deemed to have an environmental interest beyond an abstract and indirect interest in the said disposition, and thus, there is no legal interest in seeking the cancellation of the instant disposition against the Plaintiffs and the designated parties. Accordingly, the instant lawsuit is unlawful.

1) The construction of power plants under the instant project shall be carried out in accordance with the following procedures:

① Defendant’s electric generation business license (Article 7(1) ? ② Defendant’s approval of an execution plan for electric source development business (the main sentence of Article 5(1) of the Electric Utility Act) or permission for development of a Mayor/Gun’s electric source development business (Article 5(1) of the National Land Planning and Utilization Act) ? (3) Business operator’s report on installation plan and electric supply plan for electric installations against the Defendant (Article 26 of the Electric Utility Act) ? (4) Defendant’s authorization of a business operator’s construction plan (Article 61(1) of the Electric Utility Act) ? (5) Defendant’s pre-use inspection (Article 63 of the Electric Utility Act) after construction

Of the above procedures, Article 7 (1) of the Electric Utility Act provides that a person who intends to operate an electric generation business, etc., which is the first phase of the above procedures, shall obtain a license from the defendant, and Article 7 (5) of the same Act provides that the person who intends to operate an electric generation business shall have financial capability and technical ability necessary to properly conduct the electric utility business (subparagraph 1), that the person may operate the electric utility business in accordance with the plan (subparagraph 2) and that other standards prescribed by Presidential Decree as necessary for public interest (Paragraph 5). (Paragraph 3 and 4 of the Enforcement Decree of the Electric Utility Act provides that the person shall not interfere with the operation of the electric power generation business, which is concentrated on a specific region, and that the person who intends to operate the electric generation business shall not be able to obtain a license for the electric generation business (subparagraph 1); that the person shall not be in compliance with the basic plan for supply and demand of electricity under Article 25 of the Act; and that the person shall not be informed of his or her opinions about the electric generation business in question before being affected by the person's.

2) Hearing the opinions of residents, etc. or environmental impact assessment is from the stage when an electric power resource developer, who is an operator of electric power generation business, obtains permission for development activities from the head of a Si/Gun or establishes an execution plan for electric power resource development business and obtains approval from the defendant. In other words, a person who intends to engage in development activities shall submit an application for development activities accompanied by a plan for the installation of infrastructure, prevention of danger and injury, prevention of environmental pollution, landscape, landscape, landscape, etc. (Article 57(1) of the National Land Planning Act). The head of a Si/Gun shall ensure that the contents of the application are in harmony with the surrounding environment or landscape, such as the utilization status or land utilization plan of the surrounding area, height of buildings, earth and sand, gradient, water drainage, water drainage, drainage of river and lake wetlands, etc. (Article 58(1)4 of the National Land Planning Act). Meanwhile, an electric power resource developer shall establish an implementation plan for electric power resource development business, and shall obtain approval from the defendant, and shall obtain approval of an implementation plan for environmental impact assessment under Article 1(2).

3) The plaintiffs asserted that when the power plant of this case is constructed, the use of solid fuel (SRF) which is a hazardous substance would cause severe environmental pollution due to the discharge of multi-family houses, heavy metals, etc., thereby causing disadvantages to the housing and living environment of the plaintiffs and the designated parties. However, there is no objective data supporting such assertion. In other words, there is no proof that the plaintiffs and the designated parties have suffered or are likely to suffer environmental damage exceeding the tolerance limit compared to the previous disposition of this case.

4) Article 5 of the Electric Utility Act provides that an operator of the electric utility business shall prepare measures necessary to properly manage and preserve the natural and living environment when he/she operates the electric utility business, not the requirements for the permission for the electric utility business, but only a declared meaning that confirms the general and universal obligation to preserve the environment. Even if the Defendant and the instant commission reviewed the opinions of the local residents prior to the instant disposition, or the petition of the residents, etc. received prior to the instant disposition, it would be deemed that the resident’s consent is not the requirements for the instant disposition, but rather the reference for the smooth progress of the instant business.

5. Whether the instant disposition is legitimate (preliminary determination)

Even if it is assumed that there are cases where standing to sue exists among the plaintiffs and designated parties, the plaintiffs' assertion is without merit in the following point.

A. We first examine the argument that procedural errors exist in the disposition of this case. The main text of Article 39(2) of the Enforcement Decree of the Electric Utility Act provides that "When the chairperson of the Electrical Affairs Commission intends to convene a meeting, he/she shall notify each member in writing of the date, time, venue, and agenda at least seven days prior to the date of the meeting." However, the proviso of the same paragraph provides that "the same shall not apply to cases where it is urgent or unavoidable." According to the statement in subparagraph 1, each fact inquiry inquiry reply to the Ministry of Trade, Industry and Energy of this court, and the whole purport of oral argument with the Ministry of Trade, Industry and Energy of this court, after the preceding judgment was sentenced on December 15, 2016, which is the date of the meeting of this case, by sending and serving the bill of this case on December 22, 2016, which is the date of opening the meeting of this case, it is not reasonable to conclude that the committee's argument on the agenda of this case is an inevitable reason for the aforementioned prior decision."

B. Next, the plaintiffs asserted that the project of this case did not meet the requirements of "high level of accommodation of the area planned for the construction of electric facilities, which is the examination criteria under Article 7 (5) 2 of the Electric Utility Act and Article 7 (3) 1 of the Enforcement Rule of the Electric Utility Act, since the opposition of the residents is extreme," but it is clear in the legal text that the term "acceptance" in the above examination criteria, as the reasons for the prior judgment, means "acceptance" that means the consent of the local residents, not "acceptance (acceptance, Receipt, and any other Receipt)" that means the demand for electricity, so it cannot be deemed that the opposition of the local residents is included in the criteria for permission. Furthermore, according to the results of each inquiry into the Ministry of Trade, Industry and Energy and the purport of the whole arguments with respect to the Electrical Affairs Commission of this case, the plaintiffs' assertion that the committee of this case suspended the decision on the permission of some different projects as of the date of the instant case, and that there was no further assertion that the plaintiffs' objection to this case's construction could not be applied to the plaintiff's allegation that there were different reasons.

6. Conclusion

If so, the lawsuit of this case is unlawful and dismissed, and it is so decided as per Disposition.

Judges

presiding judge, judge Park Jong-yang

Judges Kim Gin-A

Judges Choi Jae-in

Note tin

1) According to subparagraph 3, it is clear that December 27, 2016, written application for amendment of the purport of the claim, is a clerical error.

2) Prior to the amendment by Act No. 15727, Aug. 14, 2018; hereinafter referred to as “National Land Planning Act”).