(영문) 서울행정법원 2015.9.24. 선고 2014구합7978 판결

On January 29, 2014, the defendant revoked the approval of the execution plan for electric power resource development business (report No. 5 and 6) for the Korea hydroelectric power company.

Reasons

1. Details of the disposition;

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is a 100% subsidiary company of the Korea Electric Power Corporation and is a domestic nuclear power plant supplier on the date of its implementation.

B. On January 29, 2014, the Defendant approved and publicly announced the execution plan for electric power resource development (hereinafter referred to as the “instant disposition”) with the content of constructing a nuclear power plant (hereinafter referred to as “nuclear power plant”) in the area of a project area of the area of a notice of the 2,570,466m square for Ulsan-gun, Ulsan-gun, Ulsan-gun, the project implementer of which is the supplementary intervenor (hereinafter referred to as “the supplementary intervenor”), which covers the construction of a nuclear power plant (hereinafter referred to as “original power plant”).

1. Name of the business: The name and address of the project implementer; 2. The name and address of the project implementer; the name and address of the project implementer; on December 1253, 2019 and December 6, 2020 in accordance with the sixth Electric Power Supply and Demand Plan of the Government of the Republic of Korea on December 1253, 2019; and on December 4, 2020, in order to ensure the stability in the supply of electricity by constructing the 5 and 6th nuclear power equipment: the project implementation period of 1.4 million KW-based nuclear power generation facilities (APR 1400) on September 2014: the location and area of the project area on December 7, 2020 (76 months): the area of the AXE in Ulsan Metropolitan City on September 2, 570, 460 square meters: the area on the 1,901, 514, 965 square meters; and

C. On April 28, 2014, the Plaintiffs filed the instant lawsuit seeking the revocation of the instant disposition.

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1 and 19, purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiffs' assertion

1) unconstitutionality of Article 2 Subparag. 1 and Article 5(1) of the Electric Power Source Development Promotion Act

Articles 2 subparag. 1 and 5(1) of the Electric Power Source Development Promotion Act include electric power source facilities and ancillary facilities within the scope of electric power source facilities and ancillary facilities subject to a plan for electric power source development, and allow a supplementary participant to acquire and use a site subject to electric power source development plan by a defendant who fails to have scientific, professional, and technical examination ability to examine the stability and suitability of the electric source site so that he/she can approve the implementation plan for electric power source development, but granting such authority to the defendant who is only an administrative agency, other than the Nuclear Safety and Security Commission, which is an independent safety regulation organization, is able to approve only the procedure of the same level as other electric power source facilities, such as thermal power and hydroelectric power, so the legitimacy of legislative purpose is not recognized. In addition, the approval for the implementation of electric power source development is required to be analyzed and reviewed to the maximum extent possible even if the implementation plan is approved pursuant to Article 5(1) of the Electric Power Source Development Promotion Act (Article 6(1)17 of the Electric Power Source Development Promotion Act).

Therefore, the above provisions of the Electric Power Development Promotion Act should be deemed unconstitutional and invalid, and the disposition of this case, which is based on the unconstitutional law, should also be revoked.

2) unconstitutionality of Article 5(3) of the Electric Power Source Development Promotion Act

Article 5(3) of the Electric Power Source Development Promotion Act stipulates matters to be included in the electric source development implementation plan. The above provision does not include matters concerning how spent nuclear fuel, which is a high-level nuclear waste which inevitably occurs after nuclear fission, can be treated in the nuclear source, in an implementation plan subject to approval. This is clearly contrary to the language of "to secure the safety, freedom, and happiness of our descendants" of the constitutional specialist. Thus, it should be regarded as unconstitutional and invalid in terms of legitimacy of legislative purpose or suitability of means.

3) unconstitutionality of the article in the procedure for gathering opinions under the Electric Power Source Development Promotion Act

Article 5-2(1) of the Electric Power Source Development Promotion Act provides that an electric source developer (operator) who has an interest in the project promotion shall gather opinions from residents, etc., and compared with developed countries where the former regulatory body or a separate independent organization is required to carry out the procedure of gathering opinions, it shall be deemed unconstitutional as it lacks independence and procedural fairness of the subject.

4) Illegality of the process of collecting opinions in the instant disposition

In the process of promoting the original development project (hereinafter referred to as the "project of this case"), the supplementary intervenor did not lawfully go through the procedure of gathering opinions for residents, which is subject to the approval of the disposition of this case.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Whether the plaintiffs' lawsuits listed in attached Forms 2 and 3 are legitimate

Before determining the plaintiffs' claims, it is first judged whether the plaintiffs' lawsuits listed in attached Tables 2 and 3 are legitimate or not.

A person who intends to construct electric power source through electric source development business shall obtain permission from the Nuclear Safety and Security Commission to construct electric source nuclear reactor and related facilities as well as electric source development implementation plans by the defendant under the Electric Power Source Development Promotion Act (Article 10(1) of the former Nuclear Safety Act (amended by Act No. 13078, Jan. 20, 2015; hereinafter referred to as the "Nuclear Safety Act")). In order to operate the electric power source development business, he/she shall obtain permission from the Commission again (Article 20(2) of the Nuclear Safety Act). Meanwhile, Articles 10(2) and 20(2) of the former Enforcement Rule of the Nuclear Safety Act stipulate that a person who intends to obtain construction permission and operation permission for electric power reactor and related facilities shall submit a report on the current status of nuclear source utilization facilities of the nuclear source within the scope of 0 km from the total distance of nuclear source utilization facilities to the environment by calculating the current status of nuclear source utilization facilities of each production site and other related facilities within the scope of 10 m from the former Enforcement Rule of the Nuclear Safety Commission.

In full view of the above provisions, the area subject to the environmental impact assessment in the development and construction of the nuclear source shall be deemed to have been set within 80km from the site subject to the environmental impact assessment. The purport of the provisions of the Electric Source Development Promotion Act and the Nuclear Safety Act and the Enforcement Rules of the Nuclear Safety Act, which are the basis laws and regulations for the electric source development business, is to protect the individual interests of the residents in the area subject to the environmental impact assessment, who are the residents in the area subject to the environmental impact assessment, who intend to construct the electric source development business, without being affected by the environmental infringement or health harm beyond the limit of admission, and are also able to live in a sound and pleasant environment, so the above interests in the area subject to the environmental impact assessment, which the residents in the area subject to the environmental impact assessment, who are expected to cause direct and significant environmental or health damage due to the execution of the electric source development business, are the direct and specific interests directly and specifically protecting the individual residents, but the residents outside the area subject to the environmental impact assessment are not entitled to seek the cancellation of the business approval (see, e.g.

In light of the above legal principles, in the case of the plaintiffs listed in the separate sheet No. 1, they are the plaintiffs who reside within 80km from the project site of this case (this point is without dispute between the parties) and who reside within 80km from the project site of this case. However, in the case of the plaintiffs listed in the separate sheet No. 2 and 3, they are residents living outside the area located within 80km from the project site of this case (this point is without dispute between the parties) and they are residents living outside the area subject to environmental management assessment as mentioned above, so the above plaintiffs cannot be recognized as standing to sue. Therefore, the plaintiffs' lawsuits listed in the separate sheet No. 2 and No. 3 shall be dismissed (On the other hand, in the case of the plaintiffs listed in the separate sheet No. 2, the plaintiffs' attorney shall also be acknowledged as standing to sue with them, but the plaintiffs' legal representative should also be acknowledged as the grounds for plaintiff's standing to sue within 250km from the previous site of this case, and there shall be no grounds for interpretation in addition to the judgment below.

D. Determination

1) Whether Article 2 Subparag. 1 and Article 5(1) of the Electric Power Source Development Promotion Act is unconstitutional

Article 5(1) of the Electric Power Source Development Promotion Act provides for the defendant as an approving authority for the implementation plan for electric power source development business, but as seen earlier, an electric power resource developer who intends to construct the nuclear power reactor and related facilities shall obtain a construction permit from the Nuclear Safety and Security Commission to construct the nuclear power reactor and related facilities (Article 10(2) of the Nuclear Safety Act). To operate the nuclear power reactor, he/she is unable to construct and operate the nuclear power reactor without permission from the Nuclear Safety and Security Commission (Article 20(2) of the Nuclear Safety Act). In addition, it is necessary to determine the defendant, who is not the approving authority, at the approval stage of the implementation plan corresponding to the stage prior to the installation of the nuclear power reactor and related facilities, such as the construction of the nuclear power reactor and related facilities. However, it is necessary to examine the technical stability of the nuclear power reactor in the development of the nuclear power reactor, but it is necessary to review the need for development, such as whether the nuclear power reactor development conforms to the overall demand and supply situation of Korea and the long-term energy policy. Therefore, it is reasonable.

In addition, Article 10(3) of the Nuclear Safety Act provides that if a person who intends to construct a nuclear power reactor and related facilities files an application for prior approval of the site before applying for construction permit, he/she may construct the site within the scope prescribed by Ordinance of the Prime Minister. Article 10(4) of the same Act provides that "any person who has obtained prior approval of the site under paragraph (3) of the same Article may construct the site within the scope prescribed by Ordinance of the Prime Minister." Article 7(1) of the Enforcement Rule of the Nuclear Safety Act provides that "the excavation of the site where the nuclear power reactor facilities are installed and concrete construction works for the protection and reinforcement of the base of the site may be carried out." Article 6(1)17 of the Electric Power Source Development Promotion Act provides that if an electric power source developer obtains prior approval of the site development project, it shall not be deemed that prior approval of the site is obtained under the Act on the Establishment of Electric Power Source and Electrical Power Development Promotion (see, e.g., Supreme Court en banc Decision 200Da106500, supra.).

Ultimately, this part of the plaintiffs' assertion cannot be accepted.

2) Whether Article 5(3) of the Electric Power Source Development Promotion Act is unconstitutional

Article 6 (1) of the Radioactive Waste Management Act provides that "the defendant shall establish a basic plan for radioactive waste management in order to ensure the safe and efficient management of radioactive waste," and Article 6 (3) of the same Act provides that "the basic plan for radioactive waste management shall include "matters concerning the basic policy for radioactive waste management," "matters concerning the current status of and prospects for the occurrence of radioactive waste," "matters concerning the plan for facilities such as the selection of sites for radioactive waste management facilities," and "matters concerning the investment plan for radioactive waste management facilities", and Article 6-2 of the radioactive Waste Management Act provides that "the defendant may undergo a wide range of procedures for gathering opinions from interested parties, citizens, or experts, etc. with respect to the matters that are anticipated

As above, the term "nuclear fuel treatment plan" should take into account the policies on the use of nuclear fuel of the entire nation beyond individual source of electricity and requires public debate for the formation of a consensus among the whole nation. Thus, insofar as it is dealt with through a separate law, it cannot be concluded that it is unconstitutional on the ground that it does not include a spent nuclear fuel treatment plan at the approval stage of the implementation plan for the electric power resource development business concerning the construction of individual source of electricity.

We cannot accept this part of the plaintiffs' assertion.

3) Whether the procedures for gathering opinions under the Electric Power Source Development Promotion Act are unconstitutional

Article 5-2 (1) of the Electric Source Development Promotion Act provides that "where an electric source developer intends to obtain approval or approval for change of an execution plan pursuant to Article 5, he/she shall hear opinions of residents, relevant experts, etc. (resident, etc.) in the area affected by the execution of the target project through inspection or presentation prior to applying for approval or approval for change of the execution plan."

① However, Article 5(2) of the Electric Source Development Promotion Act provides that when the Defendant approves an execution plan for electric source development business, it shall undergo deliberation by the Electric Source Development Promotion Committee after hearing the opinions of the Special Metropolitan City Mayor, Metropolitan City Mayors, Do Governors, or Special Self-Governing Province Governor having jurisdiction over the relevant electric source development business area after consulting with the heads of relevant central administrative agencies. In light of the fact that the Special Metropolitan City Mayor, etc. subject to hearing opinions is an institution with democratic legitimacy elected by residents, only the electric source development business operator shall not be limited to the subject of procedures for hearing opinions. ② Whether to designate the subject of procedures for hearing opinions from the residents shall be considered as a matter of legislative policy in consideration of fairness, rationality and expertise as well as fairness, and expertise, ③ Article 5-2(3) of the Electric Source Development Promotion Act provides that “the matters necessary for the methods and procedures for hearing opinions of the residents, etc. shall be determined by the Presidential Decree,” Articles 18 through 18-4 of the Enforcement Decree of the Electric Source Development Promotion Act provides that the head of local government, who received the opinions, shall be presented to the residents.

When considering the above circumstances comprehensively, even if the Electric Power Source Development Promotion Act designates the subject of gathering opinions from residents, etc. at the approval stage of the execution plan for electric power resource development business, it cannot be viewed as unconstitutional.

4) Illegality of the process of collecting opinions in the instant disposition

In addition to the above facts and evidence evidence evidence evidence evidence Nos. 1 and 3, the supplementary intervenor held an explanatory meeting on the project of this case among the residents' participation in the meeting room of Ulsan-gun, Ulsan-gun on September 1, 201 through the economic newspapers, Ulsan-si newspapers, Busan-do newsletter on August 25, 201 in order to gather the opinions of residents, etc., the fact that the supplementary intervenor held a public hearing on September 14, 201 through the economic newspapers, international newspapers, ordinary daily newspapers, Ulsan-si newspapers, and Ulsan-si newspapers, etc. on June 14, 2012, after the public announcement, public inspection, and public inspection on June 29, 2012.

Therefore, it cannot be deemed that the supplementary intervenor did not undergo the procedure for gathering opinions on residents, etc. in the process of the instant disposition.

E. Sub-committee

Ultimately, all of the plaintiffs' arguments cannot be accepted, and the disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiffs' lawsuits listed in attached Forms 2 and 3 are unlawful and dismissed. The plaintiffs' claims listed in attached Form 1 are dismissed as it is without merit. It is so decided as per Disposition.