[1] The legal nature of the act of designating and changing the absolute conservation area of the Do Governor under the "Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City" (i.e., discretionary act), and whether the Do Governor shall undergo the procedures to

[2] The meaning of "before approval of basic design" under Article 23 [Attachment 1] subparagraph 16 (a) of the former Enforcement Decree of the Environmental Impact Assessment Act, which provides for the time for submission of an environmental impact assessment of a project subject to environmental impact assessment or a project plan, and whether the above provision exceeds the scope delegated by the

[3] In a case where the Minister of National Defense submitted a preliminary review of environmental impact with the Chief of Staff, who is the executor of the Jeju Navy Base Construction Project, and reflected the results of a request for consultation with the Minister of Environment, and then approved an implementation plan for national defense and military installations pursuant to Article 4 of the former Act on National Defense and Military Installations Projects, the case holding that the court below erred in the misapprehension of legal principles as to the submission period of environmental impact assessment

[1] According to the forms and language of Article 292(1) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter “Special Act on Jeju”), it is reasonable to regard the designation and alteration of the absolute conservation zone as the act of the Governor’s discretionary act. Meanwhile, according to Article 3(1) of the Ordinance on the Management of Jeju Special Self-Governing Province, when the Governor intends to designate a conservation zone, district, etc. (including an alteration) pursuant to Articles 292 through 294 of the Special Act on Jeju Special Self-Governing Province, he/she shall hear the residents’ opinions, but it does not apply where he/she alters minor matters, such as the reduction of the size of the conservation zone, district, etc. (Article 1) and the extension of the size of the conservation zone, district, etc. (Article 292(2))

[2] [Majority Opinion] In accordance with the delegation of the Environmental Impact Assessment Act, it is reasonable to interpret that the term “before approval of basic design” under Article 23 [Attachment 1] [Attachment 1] [Attachment 1] subparagraph 16(a) of the former Enforcement Decree of the Environmental Impact Assessment Act (amended by Presidential Decree No. 22017, Feb. 4, 2010; hereinafter the same shall apply] means before approval of basic design under Article 38-9 of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 21852, Nov. 26, 2009) as it is reasonable to interpret that the term “basic design” is prior to the scope of delegation of the Environmental Impact Assessment Act.

[Dissenting Opinion by Justice Jeon Soo-ahn and Justice Lee Sang-hoon] In the case of national defense and military installations projects under the former Act on National Defense and Military Installations Projects (amended by Act No. 9401, Jan. 30, 2009; hereinafter “former National Defense Projects Act”), “approval, etc. for implementation plans, etc.” under Article 16(1) of the Environmental Impact Assessment Act shall be deemed to mean “approval for implementation plans, etc.” under Article 4(1) of the former National Defense Projects Act. Article 16(1) of the Environmental Impact Assessment Act provides that the submission of an environmental impact assessment report before obtaining approval for implementation plans for national defense and military installations projects under the former National Defense Projects Act shall be made within the scope of delegation. Article 23 [Attachment 1] subparag. 16(a) of the former Enforcement Decree of the Environmental Impact Assessment Act provides that an environmental impact assessment report shall be submitted by the Presidential Decree within the scope of the specific period of submission. Thus, it shall be null and void, which is contrary to a superior law.

[3] In a case where the Minister of National Defense submitted a prior examination of environmental impact to the Chief of Staff, who is the executor of the Jeju Navy Construction Project, and reflected the results of a request for consultation with the Minister of Environment, and then approved an implementation plan for national defense and military installations pursuant to Article 4 of the former Act on National Defense and Military Installations Projects (amended by Act No. 9401, Jan. 30, 2009; hereinafter “former National Defense Projects Act”), the case held that the court below's submission of the prior approval plan for the basic plan for military installations under Article 23 [Attachment 1] subparagraph 16 (a) of the former Enforcement Decree of the Environmental Impact Assessment Act (amended by Presidential Decree No. 22017, Feb. 4, 2010; hereinafter the same shall apply] shall be construed as the submission of the prior examination of environmental impact assessment plan for military installations under Article 23 [Attachment 1] of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 21852, Nov. 26, 2009].

[1] Articles 292(1), 293, and 294 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City / [2] Article 16 of the Environmental Impact Assessment Act (wholly amended by Act No. 10892, Jul. 21, 201); Article 23 [Attachment 1] subparagraph 16(a) of the former Enforcement Decree of the Environmental Impact Assessment Act (wholly amended by Presidential Decree No. 22017, Feb. 4, 2010); Article 4 (see current Articles 4 and 6) of the former Enforcement Decree of the National Defense and Military Installations Projects Act (Amended by Act No. 9401, Jan. 30, 2009); Article 38-9(see current Article 60) of the former Enforcement Decree of the Construction Technology Management Act (Amended by Presidential Decree No. 21852, Nov. 26, 2009); Article 29(1) of the former Enforcement Decree of the Environmental Impact Assessment Act (wholly amended by Presidential Decree No. 20161, Feb. /19, / [2019)

See Attached List (Law Firm Yang Jae-in et al., Counsel for the plaintiff-appellant)

The Minister of National Defense (Law Firm Corporation, Attorneys Gjin-o et al., Counsel for the defendant-appellant)

Samsung C&T Co., Ltd. and one other

Seoul High Court Decision 2010Nu27273 decided June 16, 2011

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. As to the misapprehension of legal principles as to the illegality of the decision to change the absolute conservation zone

(1) Whether an administrative act is a binding act or a discretionary act cannot be uniformly defined, and it shall be individually determined in accordance with the form, system, or language of the provision that forms the basis of the pertinent disposition (see, e.g., Supreme Court Decisions 97Nu15418, Dec. 26, 1997; 2007Du18321, May 29, 2008). In addition, in conducting judicial review on such discretionary act, the court examines only whether the pertinent act is a deviation or abuse of discretionary power, taking into account the room for public interest determination based on the discretion of the administrative agency, and cannot be deemed as a deviation or abuse of discretionary power, unless there is any error of fact, violation of the principle of proportionality and equality, violation of the purpose of the pertinent act, or violation of the purpose or motive of the pertinent act (see, e.g., Supreme Court Decisions 98Du17593, Feb. 9, 2001; 2005Du31395, May 31, 2007).

Article 292 (1) of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter “Special Act on Jeju”), provides that the Do Governor may designate and change any area falling under any of the areas prescribed by Provincial Ordinance ( subparagraph 1), which is designated as an area with excellent natural scenery ( subparagraph 2), water resources and cultural heritage resources, habitats or migratory areas ( subparagraph 3), natural forests, ecologically important areas ( subparagraph 4), and other areas prescribed by Provincial Ordinance for the conservation of the natural environment ( subparagraph 5) to protect the unique characteristics of the natural environment, according to the form and language of the above provision, it is reasonable to view the designation and change of an absolute conservation area by the Do Governor as an act of discretionary discretion.

Meanwhile, according to Article 3(1) of the Jeju Special Self-Governing Province Ordinance on the Management of Jeju Special Self-Governing Province, when the Do Governor intends to designate a conservation area, district, etc. (including an alteration) pursuant to Articles 292 through 294 of the Jeju Special Act, he/she shall hear the residents’ opinions, but the same shall not apply to any alteration of minor matters, such as the reduction of the area of the conservation area, district, etc. (subparagraph 1) and the extension of the area of the conservation area, district, etc. within 10/100 of the area of the conservation area (subparagraph 2

(2) According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the lower judgment, the lower court determined that the designation and alteration of the absolute conservation zone was a discretionary act by the Do Governor, and determined that the designation and alteration of the absolute conservation zone of this case was a reduction in the scope of the absolute conservation zone by cancelling the 105,295 square meters belonging to the project site of this case among the absolute conservation zones within ○○ Village, and thus, there is no need to hear the residents’ opinions, and it is reasonable to view that the Do Governor was a legitimate disposition within the scope of discretionary authority based on the professional and technical judgment on policies with the consent of the Do Council within the scope of the relevant statutes, and determined that there was no misconception of facts, violation of the principle

In light of the above legal principles and records, such judgment of the court below is just, and there is no error in the misapprehension of the legal principles as to the designation and change of an absolute conservation area, the necessity of hearing opinions of residents, and the deviation and abuse of discretionary power, or exceeding the bounds of the principle of free evaluation of evidence

B. As to the misapprehension of legal principles as to the defect of the approval of the modification of this case

According to the reasoning of the first instance judgment partially admitted by the lower court and the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and determined that even if there were some deficiencies in the environmental impact assessment, such as not examining the alternative project site in detail at the preliminary examination stage of the environmental impact assessment, omitting the content of the plan, and omitting the existence of endangered species at the stage of the environmental impact assessment, the degree of the defect cannot be deemed to be the same as that of the failure to conduct environmental impact assessment as much as it could not achieve the legislative intent of the environmental

According to the reasoning of the judgment below and the records, the above judgment of the court below is just, and there is no error of misapprehending the legal principles on environmental impact assessment or failing to exhaust all necessary deliberations, as otherwise alleged in the ground

2. As to the Defendant’s ground of appeal

A. Interpretation of statutes ought to be carried out in the direction of finding concrete feasibility within the extent that does not undermine legal stability. To this end, as far as possible, a systematic and logical interpretation method which takes into account the legislative intent and purpose, history of enactment and amendment of the relevant statutes, harmony with the entire legal order, relationship with other Acts and subordinate statutes, etc. should conform to the above-mentioned request for statutory interpretation (see, e.g., Supreme Court Decisions 2006Da81035, Apr. 23, 2009; 2010Da81254, Dec. 23, 2010).

B. According to the delegation of the Environmental Impact Assessment Act (hereinafter referred to as the “Act”), the lower court: (a) premised on the premise that the term for submission of an environmental impact assessment on a project subject to the environmental impact assessment or its project plan (hereinafter referred to as “project plan, etc.”) under Article 23 [Attachment 1] [Attachment 1] subparagraph 16(a) of the former Enforcement Decree of the Environmental Impact Assessment Act (amended by Presidential Decree No. 22017, Feb. 4, 2010; hereinafter “Enforcement Decree”), the “before approval of the basic design” under Article 23 [Attachment 1] subparagraph 16(a) of the former Enforcement Decree of the Environmental Impact Assessment Act (hereinafter referred to as the “Enforcement Decree of this case”) refer to the pre-approval of the implementation plan under Article 4 of the former Act on National Defense and Military Installations Projects (amended by Act No. 9401, Jan. 30, 209; hereinafter referred to as the “former National Defense Project Act”); and determined that the Defendant’

However, it is reasonable to interpret Article 23 [Attachment 1] subparag. 16(a) of the Enforcement Decree as the phrase “before approving the basic design” as it is before the approval of the “basic design” under Article 38-9 of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 21852, Nov. 26, 2009; hereinafter the same shall apply). Such view does not deviate from the scope of delegation of the Act. The reasons are as follows.

(1) According to the former National Defense Project Act, where a project implementer intends to implement a project prescribed by Presidential Decree among the national defense and military installations projects, he/she shall prepare the implementation plan and obtain approval from the Minister of National Defense as prescribed by Presidential Decree (the first sentence of Article 4(1)), and where the Minister of National Defense intends to approve the implementation plan under Article 4, he/she shall consult with the head of the relevant central administrative agency and the head

Meanwhile, according to the former Framework Act on Environmental Policy (amended by Act No. 10032, Feb. 4, 2010; hereinafter the same), in establishing administrative plans or developing projects (referring to development projects for which the establishment of an administrative plan is not required; hereinafter the same shall apply), it is required to conduct an advance examination of environmental feasibility through prior evaluation such as the establishment, analysis, etc. of alternative plans for the relevant administrative plan or development projects (Article 3 subparag. 7), and Article 25-2(2) of the same Act and Article 7(1) [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 21621, Jul. 7, 2009); and Article 7(1)1 (j) of the former Enforcement Decree of the Framework Act on National Defense (amended by Presidential Decree No. 21621, Jul. 1, 2009) provide that the Minister of National Defense shall consider prior consultation with the head of the relevant central administrative agency as an implementation plan under Article 5(1).

According to the law separate from the prior examination of environmental feasibility, when a project plan for a project subject to environmental impact assessment is to be formulated, it is required to conduct an environmental impact assessment to devise a plan to avoid or reduce harmful environmental impacts (hereinafter “environmental impact plan”) by investigating, forecasting, and assessing the environmental impact of the project (hereinafter “environmental impact”) in advance (Article 2 subparag. 1), Article 16 of the Act, and Article 16 of the Act shall submit an assessment report to the head of the approving agency before obtaining approval, etc. for the project plan, etc. (Article 1), and a project executor who is required not to obtain approval, etc. from the head of approving agency or approval agency shall submit an assessment report to the Minister of Environment, and request consultation on the assessment report as prescribed by Presidential Decree (Article 2 subparag. 1), specific time for submission of an assessment report, and other necessary matters (Article 3).

According to such delegation, Article 23 of the Enforcement Decree provides that "the time for the submission of an assessment statement under Article 16 (1) of the Act and the time for the request for consultation under paragraph (2) of the same Article shall be as shown in attached Table 1." The Enforcement Decree of this case in the attached Table 1 provides that the time for the submission of an assessment statement and the time for the request for consultation shall be defined as "before the approval of the basic design" if the project area among the national defense and military installations projects under Article 2 (2) of the National Defense and Military Installations Projects should be approved by the Minister of National Defense, etc.

(2) However, while the approval of the implementation plan for a development project takes effect by comprehensively deeming the approval of the relevant laws and regulations necessary for the implementation of the project, such as permission for development activities under the Act on the Planning and Utilization of National Land, permission for the occupancy and use of public waters and permission for reclamation under the Public Waters Management and Reclamation Act, and permission for the occupancy and use of roads under the Road Act, the approval of the implementation plan for national defense and military installations projects shall be deemed only the approval of the project under Articles 5(5) and 6 of the former National Defense Project Act, and the permission for the diversion of farmland, mountainous districts, and grassland and the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, Etc. for Public Works Projects (hereinafter “Public Works Act”) is deemed as comprehensive. As such, the project operator, after obtaining the approval of the implementation plan, shall develop a specific plan and implement the specific project implementation procedure, such as

Therefore, the approval of an implementation plan for national defense and military installations projects under Article 4 of the former National Defense Projects Act is merely the designated phase of the project area for securing the project site, and the detailed contents are not specified. Thus, the legal nature of the approval of the implementation plan for other development projects, the validity of which is comprehensively recognized, is only the same as that of the approval of the implementation plan for the national defense and military installations projects. Meanwhile, unlike the former National Defense Projects Act, the Act on National Defense and Military Installations Projects amended by Act No. 10926 on July 25, 201 as amended by Act No. 10926 on July 25, 201, which is different from the former National Defense Projects Act, provides that "approval of the implementation plan for national defense and military installations projects" in Article 6 which comprehensively recognizes the validity of the project approval agenda, and accordingly, Article 2(1) [Attachment 13] of the Addenda of the Enforcement Decree of the National Defense Projects Act as amended by Presidential Decree No. 23529 on January 25, 2012>

Article 3(1) of the former Enforcement Decree of the National Defense and Military Installations Projects Act (wholly amended by Presidential Decree No. 23529, Jan. 25, 2012; hereinafter “former Enforcement Decree of the National Defense Projects Act”), which reflects the legal nature of approval of an implementation plan for national defense and military installations projects, which are merely the designation phase of a project area as above, requires that only a project plan, a drawing indicating the planned project area and the project plan, a detailed statement of land required for the project, and a detailed statement of goods should be attached to a building or a major facility within the planned project area. Therefore, in reality, it is difficult to achieve the purpose of environmental impact assessment, which seeks measures for environmental conservation by investigating, forecasting, and assessing the environmental impact of the implementation of the national defense and military installations

(3) In light of the contents and structure of the former Framework Act on Environmental Policy, the Environmental Impact Assessment Act, the former Framework Act on Environmental Policy, and the former Act on National Defense and the Environmental Impact Assessment Act, taking into account the respective unique objectives and functions of the preliminary examination and the environmental impact assessment, and the legal nature of the approval of the implementation plan for the national defense and military installations projects under Article 4 of the former Act on National Defense and Military Installations Projects Act, it is not required to undergo the preliminary examination and the environmental impact assessment prior to the approval of the implementation plan. However, it is reasonable to interpret that, prior to the approval of the implementation plan only for the designated phase of the project area, the prior examination of environmental feasibility and the feasibility of the location of the environmental area under the former Framework Act on Environmental Policy should be conducted prior to the approval of the implementation plan.

(4) Article 16 of the Act provides that “Before the submission of an environmental impact assessment report is approved” for a project plan, etc., and the specific time is delegated to the Presidential Decree, the purport of the provision is that the submission of an environmental impact assessment report is made before the detailed plan that reflects the results of the environmental impact assessment is finalized by approval, etc., but it is interpreted that the most appropriate time for submission is delegated to the Presidential Decree, taking into account the individual characteristics of various projects and the process of the implementation thereof. Therefore, “approval, etc.” includes not only an administrative disposition as to the specific facts of the approving agency, such as approval, authorization, permission, license, or decision, but also an equivalent procedure during the process of a project subject

However, according to Article 21-3(3) of the former Construction Technology Management Act (amended by Act No. 9848, Dec. 29, 2009; hereinafter the same), necessary matters concerning the contents and methods of performing construction works shall be prescribed by Presidential Decree. Pursuant to the main sentence of Article 38-4 of the former Enforcement Decree of the Construction Technology Management Act, the contracting authority shall implement construction works in accordance with the process of examining the basic concept, feasibility studies, basic plans, basic plans, basic plans, design plans, surveys and ground surveys, economic feasibility, etc., inspection and management of the state of execution, management, completion, follow-up assessment, maintenance and management, except as otherwise expressly provided for in other statutes.

As such, the basic design is a procedure implemented in accordance with Article 38-9 of the former Enforcement Decree of the Construction Technology Management Act and “detailed standards for the implementation of basic design, etc.” announced by the Ministry of Land, Transport and Maritime Affairs, and is an important procedure that should be deliberated upon by the contracting authority in the process of executing construction works, including the form, ground and soil quality of major structures in construction works, general construction cost, and implementation design policies, and in the process,

Accordingly, the contracting authority shall undergo the basic design procedure in respect of construction works implemented under the former National Defense Project Act. Accordingly, pursuant to Article 5 of the Construction Technology Management Act, Article 20 of the former Enforcement Decree of the Construction Technology Management Act, and Article 10 of the former Enforcement Decree of the Construction Technology Management Act and Article 1042 of the Ministry of National Defense Directive, the Special Construction Technology Deliberation Committee is established under the Ministry of National Defense in order to deliberate on the design matters concerning construction works involving military secrets among military installations, and the basic design and construction matters, including the basic design, should be deliberated and resolved by the said Committee. Accordingly, the basic design procedure, etc. determined through a resolution by the said Committee on the basic design, etc., corresponding to the above approval, may be deemed as “approval of the basic design” as stipulated in Article 23 [Attachment Table 1]

(5) Meanwhile, when a project executor intends to commence a project subject to environmental impact assessment, he/she shall notify the head of the approving authority and the Minister of Environment of the details thereof as prescribed by Ordinance of the Ministry of Environment (Article 27), and shall not perform construction works concerning the project subject to environmental impact assessment before the procedure for consultation or re-consultation under Articles 16 through 21 or modification of the project plan, etc. under Articles 22(1) through (3) is completed (main sentence of Article 28(1)). The head of the approving authority shall, when the project executor subject to approval, order the project executor to suspend construction works in whole or in part (Article 28(3)). As such, there is sufficient plan to suspend the implementation of the project subject to environmental impact assessment if the project executor fails to undergo environmental impact assessment before the basic design is approved or if there is any defect in the environmental impact assessment.

C. As seen above, the term “before approval of the basic design” under the Enforcement Decree of the instant case shall be interpreted to mean “before approval of the basic design” under the former Construction Technology Management Act, and it shall not be interpreted to mean “before approval of the implementation plan” under the former Construction Technology Management Act.

Nevertheless, the court below held that the approval disposition of the implementation plan of this case is null and void on the premise that the "before approval of the basic design" of the Enforcement Decree of this case means "before approval of the implementation plan of this case" for the national defense and military installations projects of this case, on the ground that the Navy Chief of Staff, a project implementer, submitted only the preliminary examination before approval of the implementation plan of this case and did not submit an environmental impact assessment report. This decision is erroneous in the misunderstanding of legal principles as to the nature and characteristics of the approval disposition of the implementation plan of this case, and the timing for submission

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeals are all dismissed. It is so decided as per Disposition.

Except as otherwise expressly provided by Justice Jeon Soo-ahn and Justice Lee Sang-hoon, this decision delivered with the assent of all Justices who reviewed the Defendant’s grounds of appeal.

4. Dissenting Opinion by Justice Jeon Soo-ahn and Justice Lee Sang-hoon is as follows.

In the case of national defense and military installations projects under the former National Defense Project Act, the Majority Opinion, on the premise that the “approval, etc. for the project plan, etc.” under Article 16(1) of the Environmental Impact Assessment Act does not mean the “approval for the implementation plan, etc.” under Article 4(1) of the former National Defense Project Act, deeming that a business operator may submit an environmental impact assessment report and request consultation by the time prior to the approval for the basic design pursuant to the Enforcement Decree of the instant Act, is valid. However, this is not correct.

A. In the case of national defense and military installations projects under the former National Defense Project Act, “approval, etc. for a project plan, etc.” of the legal provisions of this case shall be deemed to mean “approval of an implementation plan” under Article 4(1) of the former National Defense Projects Act. The reasons are as follows.

(1) First of all, the former National Defense Project Act does not have any other concepts or regulations that can be seen as falling under “approval, etc. of project plans, etc.” of the legal provisions of this case except for “approval of implementation plans, etc.” under Article 4(1).

(2) The Environmental Impact Assessment Act defines “project subject to environmental impact assessment” as “project plan, etc.” and defines “approval, authorization, permission, license, or decision, etc.” (Article 2 subparag. 3) as “approval, etc.” (Article 2 Subparag. 3), and stipulates that a business operator shall submit an environmental impact assessment report to a “head of an approving agency” before obtaining “approval, etc. for a project plan, etc.” As such, it is difficult for the Majority Opinion to comprehensively state all the names of dispositions prescribed in various individual Acts and subordinate statutes, and thus, it is merely for the purpose of comprehensive title. The Majority Opinion’s interpretation of “approval, etc.,” which is appropriate for accomplishing the purpose of the Environmental Impact Assessment Act as “approval, etc.,” and thus, cannot be understood as “the head of an approving agency” as “the period for submission of a written environmental impact assessment report, etc., based on the Majority Opinion’s interpretation and interpretation of “the period for submission of a written environmental impact assessment report” as “the head of an approving agency, etc.,” rather than “the head of an approving” as stated in the Majority Opinion.

(3) In light of the developments and details of the amendment of the National Defense Project Act, it is reasonable to regard the “approval, etc. of the project plan, etc.” of the instant legal provisions as “approval of the implementation plan, etc.” of the former National Defense Project Act.

The National Defense Project Act was amended by Act No. 10926, Jul. 25, 2011. The purpose of the amendment is to clarify the timing for requesting an environmental impact assessment. The procedures for the national defense and military installations project, which was implemented only as the "implementation plan", are divided into two stages of the "national defense and military installations project plan" and "national defense and military installations project plan plan" so that an environmental impact assessment can be requested prior to the approval of the implementation plan, and the amended National Defense Project Act provides that "approval of the implementation plan for national defense and military installations project" in Article 4 and "approval of the implementation plan for the national defense and military installations project" in Article 6, while the amended National Defense Projects Act provides that "approval of the implementation plan for the national defense and military installations project" shall be construed as "approval of the project plan" (Article 5) and "approval of the implementation plan for partial permission" in Article 4 of the amended National Defense Projects Act shall be construed as "approval of the implementation plan for the National Defense Projects Act" (Article 7 of the amended National Defense Projects Act).

In full view of the foregoing, “approval of an implementation plan” for national defense and military installations projects under the former National Defense Project Act may be deemed as having the same character as “approval of a project plan” and “approval of an implementation plan” under the amended National Defense Project Act, and therefore, the “approval, etc. of a project plan, etc.” under the legal provisions of this case refers to the “approval of an implementation plan, etc.” under the former National Defense Projects Act, which have

The Majority Opinion states that the “approval of an implementation plan” under the former National Defense Project Act is not recognized comprehensively, and its legal nature is different from the approval of an implementation plan in order to secure a project site, and is similar to the “approval of an implementation plan” under the amended National Defense Project Act. However, the difference between the approval of an implementation plan under the National Defense Project Act is both possible and the constructive effect of the approval of an implementation plan under the former National Defense Project Act, and the scope of the legal fiction of the approval granted under the National Defense Project Act before and after the amendment, and the difference between the approval of an implementation plan under the previous Act and the “approval of an implementation plan” under the previous Act shall be deemed the “approval of the implementation plan” under the amended Act, by providing that the “approval of the implementation plan” under the former Act shall be deemed to have been granted without any separate measure. In light of the foregoing, the Majority Opinion’s above assertion is unreasonable.

(4) Article 25-2 of the Framework Act on Environmental Policy and Article 7(1) [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy provides that the implementation plan for national defense and military installations shall be treated as a kind of administrative plan and shall conduct an advance examination. However, as seen earlier, the approval of the implementation plan under the former Act on National Defense and Military Installations shall be deemed to have both the “approval of the project plan” and the “approval of the implementation plan.” Rather, the pertinent legal provision shall also be subject to an environmental impact assessment prior to the “approval of the implementation plan.” In addition, it is more consistent with the dual nature of the approval of the implementation plan under the former Act on National Defense and National Defense (see, e.g., Article 33-2 of the Impact Assessment Act on Environment, Traffic, Disasters, etc. newly established under Article 3(3) of the Addenda of the Framework Act on Environmental Policy (see, e.g., May 31, 2005).

(5) Above all, considering the purport of establishing an environmental impact assessment system in the Environmental Impact Assessment Act, the legal provisions of this case should be interpreted as seen above.

Since the process of environmental impact assessment is a system to assess and examine the environmental impact before the implementation of the development project and to minimize the impact, it is necessary to go through the process of environmental impact assessment prior to the approval of the implementation plan for the national defense and military installations project. If a disposition, such as approval without going through environmental impact assessment, is taken, the process of environmental impact assessment shall be completed in advance and the consultation with the Minister of Environment shall be obstructed by itself based on the results thereof. In such a case, it is highly likely that the legislative intent of the environmental impact assessment system may not be achieved in order to prevent the destruction of environment and to maintain and create a pleasant environment, and the direct and individual interests of the residents in the area subject to environmental impact assessment shall be fundamentally infringed. This point goes against the legislative intent of the above implementation plan for the military installations, including the above en banc Decision 2005Du14363, Jun. 30, 206; if a disposition such as approval, etc. has already been made without going through such environmental impact assessment, the majority opinion held that the above disposition was unlawful on the contrary to the purport of the Supreme Court en banc Decision 2906Du36.

In addition, in light of the documents requiring the submission of the application for approval of the implementation plan in Article 3(1) of the former Enforcement Decree of the National Defense Project Act, it is difficult to achieve the purpose of environmental impact assessment at the actual stage of approval of the implementation plan. However, Article 3(1) of the former Enforcement Decree of the National Defense Project Act provides that a project implementer shall submit a plan in addition to the drawing indicating the planned project area and the project plan and the detailed statement of the land needed for the project, as mentioned in the Majority Opinion, along with the “project plan” and the detailed specification of the plan and the drawings indicating the project plan can be conducted on the basis of the documents (as stated in the Majority Opinion, according to the reasoning of the lower judgment, joint ecosystem investigation has already started before the approval of the implementation plan in this case and the project contents at the time of approval of the implementation plan has already been made to the extent that the draft of the implementation plan can be submitted after the approval of the implementation plan. Rather, in light of the legal effect granted the approval of the implementation plan, it is necessary to specify the project contents to submit the project plan and drawings.

In addition, based on the provisions of Article 27, the main text of Article 28(1), and Article 28(3) of the Environmental Impact Assessment Act, the Majority Opinion has fully prepared a plan to prevent the progress of a project subject to environmental impact assessment in cases where a project implementer fails to undergo environmental impact assessment before the basic design is approved, or where there is a defect in the environmental impact assessment. However, the above provisions are provisions prohibiting construction of a project subject to environmental impact assessment before completing the procedure for consultation on environmental impact assessment. In light of the fact that where a project implementer violates the aforementioned provision and performs construction works, the head of the approving agency should be deemed to have taken into account that the project implementer’s implementation prior to the approval of the implementation plan was conducted prior to the completion of the procedure for consultation on environmental impact assessment.

(6) Furthermore, in the instant case, the Defendant submitted an environmental impact assessment report on the instant project after the instant approval disposition, followed the consultation procedure, and subsequently revised the original implementation plan to reflect the results of the consultation on environmental impact assessment. If the approval of the implementation plan is merely the same as the designation of a development zone, and thereafter submitted an environmental impact assessment report, as the Majority Opinion, the Defendant does not have any reason to modify the original implementation plan itself (the Defendant still asserts that the initial approval disposition is lawful and that it is inconsistent with the aforementioned action). This is against the fact that there is a defect in the instant approval disposition conducted without going through an environmental impact assessment and that the Defendant was aware of it.

(7) Therefore, in the case of national defense and military installations projects under the former National Defense Project Act, the term “approval, etc. of the project plan, etc.” of the legal provisions of this case refers to “approval of the implementation plan, etc.” under Article 4(1) of the former National Defense Project Act, and there is no ground or reason to regard it as different.

B. In the case of national defense and military installations projects under the former National Defense Project Act, the provisions of the Enforcement Decree of this case stipulating the period for submission of environmental impact assessment as “before approval of basic design” after approval of the implementation plan shall be null and void. The reasons are as follows.

(1) According to Articles 40 and 75 of the Constitution of the Republic of Korea, legislative power belongs to the National Assembly, and the President may issue Presidential Decree with regard to the matters delegated by the Act and necessary matters for the enforcement of the Act. Thus, the Enforcement Decree of the Act can only provide matters delegated by the Acts of the parent corporation or detailed matters necessary for the real enforcement of the Act within the scope prescribed by the Acts, and it is not possible to modify or supplement the contents of rights and obligations of individuals provided by the Act or to provide new matters not provided by the Acts, unless otherwise delegated by the Acts (see, e.g., Supreme Court en banc Decision 93Da37342, Jan. 24, 1995; Supreme Court en banc Decision 2005Du1237, May 21, 2009).

The legal provisions of this case stipulate that an environmental impact assessment shall be submitted prior to obtaining approval of an implementation plan for national defense and military installations projects under the former National Defense Project Act, and a specific period of submission shall be delegated to the Presidential Decree within the scope of such delegation. However, the Enforcement Decree of this case stipulates that an environmental impact assessment shall be submitted by the time prior to the approval of the basic design, which appears to be one of the process of the actual implementation of the construction after the approval of the implementation plan beyond the scope of delegation. Thus, it is invalid

In addition, even if considering the circumstances leading up to the enactment of the enforcement decree of this case, it is not reasonable to limit the interpretation of the provision of this case, which is a superior law, or to deem the enforcement decree of this case as valid.

(2) Furthermore, the concept of “basic design” under the Enforcement Decree of the instant case is not an expression derived from the former National Defense Project Act or the Enforcement Decree thereof, and it is not clear what is specifically referred. Moreover, as stated in the Majority Opinion, even if this means “basic design” under the former Construction Technology Management Act and the Enforcement Decree thereof, the concept of “approval” cannot be found in the relevant statute. Ultimately, it is unreasonable for a business entity to take internal procedures, and it does not clearly indicate when and when it is unclear and externally. Therefore, the period of submission of an environmental impact assessment under the Enforcement Decree of the instant case sets the term “before approval of the basic design” as “before submission of an environmental impact assessment report” would result in completely lowering the purport of the legal provisions of the instant case, which intended to submit the environmental impact assessment report before a certain point of time.

(3) In accordance with the language and text of the enforcement decree of this case as it is, there is no way for residents to contest against illegal national defense and military installations projects without an environmental impact assessment. In other words, if it is deemed that there is no need for an environmental impact assessment prior to the approval of the implementation plan, such as the enforcement decree of this case, the approval of the implementation plan itself should be deemed lawful and effective. In this case, the approval of the implementation plan cannot be asserted on the ground that there is an ex post facto circumstance (before the approval of the basic plan) which did not go through the environmental impact assessment. Thus, if the majority opinion can not contest it, it would be difficult to avoid conflict or conflict with the basic legal principles as at the time of the disposition, or any solution therefor, and the majority opinion cannot be seen as null and void on the ground that the implementation plan was not approved before the approval of the implementation plan was made (see Supreme Court Decision 2006Du36364, Apr. 1, 206). 206.

(4) In full view of these facts, the enforcement decree of the instant case ought to be deemed null and void.

C. The recognition disposition of this case conducted pursuant to the enforcement decree of this case, which was null and void, is null and void as its defect is significant and apparent.

Generally, the circumstances that the enforcement decree is in violation of the Constitution or laws are not clearly clear unless there is room for dispute as to the unconstitutionality or illegality of the enforcement decree, while the judgment of the Supreme Court that declared the provisions of the enforcement decree to be invalid due to the unconstitutionality or illegality thereof is not rendered. Thus, the defect of administrative disposition based on the enforcement decree is only the cause for revocation and does not constitute the cause for invalidation (see Supreme Court Decision 2004Du619, Jun. 14, 2007, etc.).

However, in a case where the above Supreme Court Decision 2005Du14363 Decided June 30, 2006 (hereinafter referred to as "the above Supreme Court Decision 2005Du14363 Decided June 30, 2006"), as in the above case, disputed the invalidity of the approval disposition of an implementation plan for a national defense and military installations project, if the approval or other disposition is made without going through an environmental impact assessment on the project subject to an environmental impact assessment, such a defect is significant and objectively obvious. Although the above Supreme Court Decision 2005Du14363 Decided December 30, 206 concerns the matter to which the former Environmental Impact Assessment Act (repealed by Article 2 of the Addenda to the Act on Assessment of Environmental, Traffic, Disasters, etc., Act No. 6095 on December 31, 199), the form and content of the above Act is almost

Therefore, although the above Supreme Court Decision did not explicitly declare that the former Enforcement Decree of the Environmental Impact Assessment Act was null and void, the interpretation of the former Environmental Impact Assessment Act, which is the basis provision, should undergo an environmental impact assessment before approval of the implementation plan of the national defense and military installations project, and if not, the defect of the pertinent disposition should be serious and clear and null and void. Thus, it is reasonable to deem that the illegality of the enforcement decree of this case, which is the content of the former Enforcement Decree of the Environmental Impact Assessment Act, was clearly clear to the extent that there is no room for dispute over interpretation

As can be seen, since the approval disposition of this case was taken based on the provisions of the Enforcement Decree of this case after the illegality of the provisions of the Enforcement Decree of this case became clear to the extent that there is no room for dispute over the interpretation by the said decision, it cannot be said that the defect is evident. Meanwhile, the approval disposition of this case conducted without making an environmental impact assessment is deemed to have a significant violation of the provisions of the Act (the same purport is the same).

Therefore, the recognition of the instant disposition is null and void because its defect is significant and apparent.

D. In a case where the instant provision is limited and interpreted within the scope of superior laws so that it does not become null and void, the instant approval disposition is null and void due to serious and clear defects.

The Majority Opinion does not regard “basic design” under the Enforcement Decree of the instant case as meaning “basic design” under the former Construction Technology Management Act that takes place after the approval of the implementation plan, and, under the premise that the approval of the basic design may take place prior to the approval of the implementation plan, limited interpretation of the Enforcement Decree of the instant case where the approval of the basic design was granted prior to the approval of the implementation plan is stipulated as the time for submission of environmental impact assessment, the Enforcement Decree of the instant case may not be deemed invalid.

However, even if such limitation is interpreted, the approval disposition of this case was conducted without going through environmental impact assessment within the deadline for submission of the pertinent legal provisions or the provisions of the Enforcement Decree of this case. Thus, there is no change in the invalidation of the assessment as it is significant and objective.

E. We decide to point out the illegality of the instant approved disposition in terms of legislative administration.

The administration must be bound by law based on the legal system. The rule of law is reflected in the administration of the rule of law. It is inevitable that administrative agencies such as the defendant must comply with the rule of law. However, in the implementation of large-scale national affairs such as the project in this case, in particular, procedures should be carried out so as not to violate the relevant law even more sufficiently considering the impact or ripple effect of the implementation of large-scale national affairs such as the project in this case, and therefore, the rights and interests of the people to be protected by law should not be unduly infringed.

In the instant case, there is an unclear aspect that the meaning of a part of the language and text of the pertinent law is unclear, and the enforcement decree of this case also stipulated differently from the scope of delegation by the superior law, but there is sufficient reason to view that the enforcement decree of this case goes beyond the scope of delegation by the superior law, and thus, the Supreme Court has rendered a decision to the effect that the enforcement decree of this case goes against the enforcement decree of this case. Thus, the Defendant should have dismissed the legislative intent of the Environmental Impact Assessment Act or infringed on the interests of the residents in the area subject to assessment to be protected by the Environmental Impact Assessment Act by taking administrative dispositions related to the instant project in compliance with the meaning of

Nevertheless, the Defendant issued the instant approval in violation of the basic and important obligations as administrative agencies with the necessity of administration, etc., which can be seen at the time of the enactment of the Enforcement Decree of the instant case, so this goes beyond the bounds of the law made by the legislative agencies, and it cannot be deemed illegal administration contrary to the interpretation of the law by the judiciary.

In addition, the attached interest is that the Defendant received an environmental impact assessment report after the approval disposition of this case, followed the consultation procedure, and subsequently modified the original implementation plan to reflect the results of the consultation. Thus, even if the invalidity of the approval disposition of this case is declared, the problems or side effects that may be caused by such a mistake or omission are so significant that the administrative act that has a serious and obvious illegal cause should be deemed valid due to the sacrifice of the above legal administration, and the interests of the residents in the area subject to assessment that is infringed by the approval disposition of this case without going through the environmental impact assessment are not so large that the above administrative act should be deemed valid.

F. Therefore, although the court below is somewhat inappropriate in its reasoning, such as not mentioning the invalidation of the provisions of the Enforcement Decree of this case, it is justified that the above approval disposition is null and void because the defects which did not undergo an environmental impact assessment before the approval disposition of this case are serious and clear. The defendant's appeal shall be dismissed.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

[Attachment] List of Plaintiffs: omitted

Justices Yang Sung-tae (Presiding Justice)