In a case where Gap et al. sought revocation of each disposition on the grounds that there was a procedural defect in the procedure that did not conduct a preliminary feasibility study as stipulated in Article 38 of the former National Finance Act regarding construction, dredging, etc. of beams with respect to the implementation plan for each river work and each approval plan for the execution plan regarding the Nakdong River among the "the 4th River Slaughter Project" among the "the fourth River Slaughter Project", the case holding that it is difficult to view that there was a defect to the extent of the grounds for revocation on each disposition immediately on the ground that the budget is the financial expenditure for the Nakdong River among the "the 4th River Slaughter Project" which

Article 27(1) and (3) of the former River Act (Amended by Act No. 11194, Jan. 17, 2012); Article 38 of the former National Finance Act (Amended by Act No. 10288, May 17, 2010); Article 13 of the former Enforcement Decree of the National Finance Act (Amended by Presidential Decree No. 23433, Dec. 30, 201);

Attached 1 List of Plaintiffs (Attorney Jeong-nam et al., Counsel for the plaintiff-appellant)

Attached 2 List of Plaintiffs (Attorney Jeong-nam et al., Counsel for the plaintiff-appellant)

The Minister of Land, Infrastructure and Transport and one other (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Korea Water Resources Corporation (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2011Nu228 decided February 10, 2012

In the judgment of the court below, the part of the plaintiffs' list "A list of standing to sue by disposition 3." is reversed as to the plaintiffs' list Nos. 1 through 2, and the part concerning the plaintiffs' appeal as to the claim for revocation of disposition Nos. 13 through 27, as stated in the corresponding list of the plaintiffs' names, and the part concerning the above plaintiffs' appeal as to the above part is dismissed. All appeals by the plaintiffs except the above reversed part are dismissed. The plaintiffs' appeal as to the remaining claims and the remaining appeals by the plaintiffs except the above plaintiffs are dismissed. The plaintiff's total litigation costs (including the part due to supplementary participation) after the appeal between the plaintiffs and the defendants are assessed against the above plaintiffs, and the costs of appeal between the plaintiffs and the defendants except the above plaintiffs are assessed against the remaining plaintiffs by the supplementary participation.

The grounds of appeal are examined.

1. As to the plaintiffs' common grounds of appeal

A. As to the allegation in the grounds of appeal regarding the disposition of the government master plan

The term "disposition of an administrative agency, which is the subject of an appeal litigation, refers to, in principle, an act of an administrative agency under the public law, which is an act of an administrative agency, and refers to an act directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations with respect to a specific matter, or directly causing other legal effects. Thus, an act that does not cause a direct legal change in the legal status of the other party or related persons, such as internal decision-making by an administrative agency, does not fall under such act (see Supreme Court en banc Order

According to the reasoning of the judgment of the court below, as the purpose of the four major river improvement projects, including Han River, Nakdong River, Geum River, Geum River, Geum River, and Yeongsan River, which was announced jointly by the Ministry of Land, Transport and Maritime Affairs, the Ministry of Culture, Sports and Tourism, the Ministry of Culture, Sports and Tourism, and the Ministry for Food, and the Ministry for Food, Sports and Tourism on June 8, 2009 (hereinafter referred to as the “instant government master plan”) provides for the preparation for climate change, nature and human life, creation of national land, balanced regional development and establishment of green growth, etc., and classify the project into “the main project,” “direct connection projects implemented in the fourth major river basin,” “direct connection projects implemented in the middle of the fourth major river basin,” and classify the project into “a linked project,” which uses the change in securing water resources, the diversification of new concepts, management of regional customized measures, active utilization of river space as a place for the implementation of the project, the implementation plan for the implementation of the project, the implementation plan of the project, and the plan for the project implementation plan for the project.

Therefore, in light of the above legal principles, the government master plan, etc. of this case is a comprehensive plan formulated to systematically promote the four major river improvement projects and related projects in the surrounding areas, and a plan proposing the basic direction of the "4 major river slaughter projects" ("the main river part of this case") and it does not constitute an administrative disposition since it merely presents the basic direction of the project inside the administrative agency and does not directly affect the rights and obligations of the people.

In the same purport, the court below was just to determine that the government basic plan of this case does not constitute an administrative disposition subject to appeal litigation, and did not err by misapprehending the legal principles on the disposition of the government basic plan.

B. As to the appeal by the head of Busan Regional Construction and Management Office on the claim for cancellation of each river work execution plan (amended) made on November 12, 2009 and February 5, 2010

Of the lower judgment, the Plaintiffs appealed on the part of the lower court’s dismissal of the Plaintiffs’ claim for revocation of each of the above river work implementation plans (amended), but did not state the grounds of appeal in the petition of

2. As to the plaintiffs' remaining grounds of appeal concerning standing to sue, except for the plaintiffs stated in the list of standing to sue (464) in attached Table 4.

A third party, who is not the direct counter-party to an administrative disposition, filed a lawsuit seeking revocation on the ground that his/her environmental interest is infringed or is likely to be infringed upon by such disposition, shall be admitted to have standing to sue to prove that his/her environmental interest is individually, directly, and specifically protected interests under the relevant laws and regulations or the relevant laws and regulations. However, in cases where the relevant laws and regulations or the relevant laws and regulations specifically stipulate the scope of the right of influence that is anticipated to be infringed on the environment due to the project, such as the act done by such disposition, etc., the residents in the affected area may expect that the relevant administrative disposition would directly and seriously cause serious environmental damage. Such environmental interest is acknowledged as a direct and specific interest that is presumed to be infringed on the environmental interest of the individual residents, and thus, standing to sue is recognized as a legal interest that is actually presumed to have been infringed on or threatened to be infringed on the environmental interest of the individual residents, barring special circumstances (see, e.g., Supreme Court en banc Decision 2006Du30606, Mar. 306). 206.

After finding the facts as stated in its holding, the court below determined that the remaining plaintiffs except the plaintiffs stated in the list of standing to sue 4, attached Table 4, are residents living in areas subject to environmental impact assessment and drinking water, and there is a right to influence that the project is likely to be affected by environmental infringement, such as the act conducted by the head of the Busan Regional Construction and Management Office by the disposition other than each river work execution plan (hereinafter "each disposition of this case") on November 12, 2009 and February 5, 2010 (hereinafter "each disposition of this case"), and there is no evidence to acknowledge that the above plaintiffs suffered or are likely to suffer environmental damage exceeding the tolerance limit due to each disposition of this case, and the environmental right under the Constitution and Article 6 of the former Framework Act on Environmental Policy (wholly amended by Act No. 10893, Jul. 21, 2011) and there is no legal interest to seek revocation of each disposition of this case to the above plaintiffs, and that there is no ordinary interest under Article 31 of the former River Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is just and there is no error by misapprehending the legal principles on the scope of standing to sue of a person who is not the

3. As to the ground of appeal on the violation of the law by the Plaintiffs (hereinafter referred to as “Plaintiffs” in paragraphs (3) through (6) of the attached Table 4 of the judgment of the court below

A. As to the ground of appeal on the violation of the River Act

In light of (1) the long-term comprehensive water resource plan, comprehensive water control plan, and basic river plan (hereinafter "the above three plans"), the period of establishment of the river basin basin plan, differences in the procedure, and the possibility of change after reviewing the feasibility of the plan, the upper plan does not necessarily have any ex post facto relationship. Thus, even if the upper plan was not established by establishing the upper plan in the order of priority, or the contents of the implementation plan are different from the contents of the upper plan, such circumstance alone is not illegal. (2) As stated in its reasoning, the head of Busan Regional Construction and Management of Busan Regional Management Office requested written consultation from the members of various river management committees, requested consultation from the members of various river management committees. (3) The Minister of Land, Infrastructure and Transport of Busan Regional Construction and Management of Busan Regional Management in order to review advisory opinions and related agencies' consultation and review related agencies, and the Defendants did not have any defects in the procedure of the upper plan in order to supplement the remote river basin comprehensive water control plan.

Examining the reasoning of the lower judgment in light of the provisions of relevant Acts and subordinate statutes, such as Articles 23 through 25, and 27 of the former River Act, and relevant legal principles and records, the lower court’s aforementioned determination is justifiable and did not err by misapprehending the legal doctrine on defects in the violation of the former River Act.

B. As to the ground of appeal on the violation of the Construction Technology Management Act

According to Article 21-3 of the former Construction Technology Management Act (amended by Act No. 9848 of Dec. 29, 2009; hereinafter the same) and Articles 38-4 through 38-19 of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 21852 of Nov. 26, 2009; hereinafter the same shall apply), a contracting authority shall ensure that the process of executing construction works, such as planning, designing, execution, supervision, maintenance, and management, are mutually and systematically implemented in order to implement construction works economically and efficiently. To this end, the contracting authority shall undergo the process of executing construction works, such as basic plans, feasibility studies, basic plans for construction works, basic plans, working plans, and working plans. However, Article 38-4 of the former Enforcement Decree of the Construction Technology Management Act provides that “where otherwise prescribed by other Acts and subordinate statutes” does not require the implementation process of construction works.

The lower court determined as follows: (a) the former River Act stipulates that a water resources long-term comprehensive plan (Article 23), a basin comprehensive water control plan (Article 24), and a basic river plan (Article 25) shall be formulated through a river basin survey (Article 16), a floodgate survey (Article 17), a flood damage survey (Article 21), etc. in connection with the implementation of river works; (b) the former River Act provides that each plan shall be formulated on a regular basis; and (c) if necessary, it shall be amended; and (d) the detailed implementation plan is formulated by the plan; and (e) the aforementioned provisions of the former River Act constitute a procedure for examining the necessity, feasibility, appropriateness, etc. of river works; and (e) the aforementioned provisions of the former Enforcement Decree of the Construction Technology Management Act constitute “cases specially provided for in other Acts and subordinate statutes”

Examining the reasoning of the lower judgment in light of the provisions of relevant Acts and subordinate statutes, such as Article 21-3 of the former Construction Technology Management Act and Article 38-4 of the former Enforcement Decree of the Construction Technology Management Act, and the relevant legal principles and records, the lower court’s aforementioned determination is justifiable and did not err by misapprehending

C. As to the ground of appeal on violation of the Korea Water Resources Corporation Act

(1) According to Articles 10(1), 10(3) and (4), and 26 of the former Korea Water Resources Corporation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same), and Articles 8 and 27(5) of the former River Act, when the Minister of Land, Infrastructure and Transport approves and publicly notifies the implementation plan of the Intervenor’s Intervenor (hereinafter “ Intervenor”) after consultation with the head of the relevant central administrative agency, the lower court determined that the Intervenor’s implementation of part of the project in this case complies with the basic river plan by exercising the authority of the river management agency within the scope of approval of the implementation plan, and that the implementation of the project in this case may not be deemed to have violated the scope of the project in this case. (3) Since the Intervenor’s implementation of the project in this case may not be deemed to have violated Article 30(1) of the former River Act, the Minister of Land, Infrastructure and Transport and the head of the relevant local government under the basic river plan.

Examining the reasoning of the judgment below in light of the provisions of relevant Acts and subordinate statutes, such as Articles 9(1)1(d) and 11, 10, and 26 of the former Korea Water Resources Corporation Act, and related legal principles and records, the above judgment of the court below is just and it did not err by misapprehending the legal principles on defects in violation of the former Korea Water Resources Corporation Act.

D. As to the ground of appeal on violation of the Cultural Heritage Protection Act

After finding facts as indicated in its holding, the lower court determined that there is no error contrary to the former Cultural Heritage Protection Act (wholly amended by Act No. 10000, Feb. 4, 2010; hereinafter the same) on the grounds that: (a) the ground surface survey for the four major projects was conducted for a period exceeding four times the ordinary statutory ground surface survey period (within 20 days); (b) the scale of the relevant cultural heritage-related specialized institutions and specialized investigators was higher than that of other projects; and (c) the underwater surface survey, including the field survey, was conducted in the participation of four specialized agencies designated and publicly notified by the Administrator of the Cultural Heritage Administration separately from the land surface survey.

Examining the reasoning of the lower judgment in light of the provisions of relevant Acts and subordinate statutes, such as Article 91 of the former Cultural Heritage Protection Act, and relevant legal principles and records, the lower court’s aforementioned determination is justifiable and did not err by misapprehending the legal doctrine on defects in

E. As to the ground of appeal on violation of the Environmental Impact Assessment Act

1) If the approval, etc. was made without going through such an environmental impact assessment as to a project subject to the environmental impact assessment as prescribed by the Environmental Impact Assessment Act, the said disposition should be deemed to be unlawful, but if the contents of the environmental impact assessment were to be somewhat defective, the degree of the defect is to the extent that the legislative purport of the environmental impact assessment system could not be achieved, and as long as the degree of the defect is not different from that of the environmental impact assessment system, the defect is only one element of determining whether the pertinent approval, etc. is a deviation or abuse of discretion, and the pertinent approval, etc. is not illegal due to the defect (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006, etc.).

2) After finding the facts as stated in its holding, the court below held that the environmental impact assessment in this case was not in violation of the Act on Environmental Impact Assessment since it used the water-quality prediction modeling result of the National Environmental Research Institute established under the Ministry of Environment, and that the environmental impact assessment in this case was not in violation of the Act on Environmental Impact Assessment since it was found that the time was completed from the planning stage to the subsequent supplement, and that it was also completed before the implementation plan or implementation plan was established or approved. (3) The environmental impact assessment in this case is not in violation of the Act on Environmental Impact Assessment. (3) The environmental impact assessment in this case is likely to have been affected by the project in this case such as flood damage in some areas, etc. as a result of the water quality prediction and the flood damage in some areas, and it is pointed out that the measures such as the expansion of drainage facilities are to be prepared in addition to the range of impact caused by the increase in groundwater level, and even if the contents are partially defective due to the lack of the legislative intent of the environmental impact assessment system.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is acceptable, and there were no errors by misapprehending the legal doctrine on environmental impact assessment.

4. As to the Defendants’ ground of appeal on violation of the National Finance Act

A. According to Article 27 of the former River Act, when a river management agency intends to implement river works, it shall establish a plan for the implementation of river works (hereinafter “river works implementation plan”), as prescribed by Presidential Decree (Paragraph 1); when a river management agency establishes or amends a river works implementation plan, it shall publicly notify the plan as prescribed by Presidential Decree (Paragraph 3). Meanwhile, pursuant to Article 38 of the former National Finance Act (amended by Act No. 10288, May 17, 2010; hereinafter the same shall apply) and Article 13 of the former Enforcement Decree of the National Finance Act (amended by Presidential Decree No. 23433, Dec. 30, 201); the Minister of Strategy and Finance shall conduct a preliminary feasibility study on a project that is required by resolution of the National Assembly, and is a new project whose total project cost is at least five billion won and whose scale of financial support is at least three billion won.

B. After finding facts as indicated in its holding, the lower court determined that the Defendants violated Article 38(1) of the former National Finance Act by failing to undergo a preliminary feasibility study on the following grounds: (a) the procedural defect inherent in each disposition of the instant case, which did not undergo a preliminary feasibility study; and (b) it merely does not mean that it is a defect in the separate budget formation from each disposition of the instant case; and (c) it is only a defect in the subsequent process to go beyond the procedural phase; and (d) there is no possibility to reduce or interpret that it is only a defect in the prior process to go beyond the subsequent procedural phase

C. However, in addition to the contents, form, legislative intent, and the legislative intent of the relevant laws and regulations as seen earlier, ① a preliminary feasibility study as provided under the former National Finance Act is a procedure for formulating the budget, which is entirely separate administrative plans from each of the dispositions of this case, and becomes final and conclusive each year in comparison with each of the dispositions of this case. ② Even if the budget for executing each of the dispositions of this case is not set, the Defendants may make each of the dispositions of this case regardless of them. Meanwhile, even if the budget for executing each of the dispositions of this case is not set, the government may set the budget for executing each of the dispositions of this case, and the respective dispositions of this case are not independent of a series of stages, and ③ the budget is binding only on the relevant national administrative agencies, and it is difficult to deem that the budget has a direct binding force on the citizens. In full view of the above, the preliminary feasibility study as provided under the former National Finance Act is merely a procedure for compiling the budget, which is entirely a separate administrative plan of this case, or its basis is not required prior to any other disposition.

Therefore, even if the budget is based on the financial expenditure for the instant business that takes place through the instant dispositions, etc., and there is a procedural defect in the formulation of the budget, it is difficult to deem that there is a defect to the extent of the reason for revocation immediately due to such circumstance alone. However, due to the defect in the budget compilation procedure, each of the instant dispositions may be deemed unlawful in a case where the Defendants, while rendering each of the instant dispositions due to the defect in the budget compilation procedure, failed to at all carry out the profit balancing on the feasibility, business feasibility, etc. required by the former River Act, or omitted any matter to be included in the subject to consideration of the balance of interests related thereto, or where it is deemed that there is a defect in the balance of interests in the instant business, even though it was in the course of balancing the interests related thereto, and where it is deemed that there

D. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of a violation of the procedures for the preliminary feasibility study under the former National Finance Act, thereby adversely affecting the conclusion of the judgment.

5. As to the plaintiffs' assertion of deviation and abuse of discretionary power

A. The term “administrative plan” refers to the establishment of an activity criteria for realizing order at a certain point in the future by integrating and coordinating the means of administration related to one another in order to achieve a specific administrative objective based on professional and technical judgments on administration. The relevant laws and regulations only provide for abstract administrative goals and procedures, but do not provide for the contents of administrative plans, and thus, an administrative agency has a relatively broad freedom in formulating and determining a specific administrative plan. However, not only unlimited but also limited to the freedom of formation of such administrative agency, but also to fairly compare the interests of the persons involved in the administrative plan with the public interest and private interest as well as the mutual interest and private interest between the public and private interest. Thus, in formulating and determining the administrative plan, the administrative agency’s decision on the administrative plan is erroneous in imposing and balancing the administrative plan (see, e.g., Supreme Court Decision 201Du5806, Dec. 12, 2012).

B. The court below rejected the following facts: (1) With respect to the necessity of flood prevention and the adequacy of the means, ① the comprehensive flood control plan and basic plan for river basin were modified and supplemented by amending and supplementing the plan for river basin and the basic plan for river basin; (2) the trend of flood damage is the large scale due to the large scale of flood occurrence in the past of Korea and the increase in frequency; (3) the river basin improvement rate for the river basin as of 2006 is 79.61% in total; (74.34% in total; (15.21% in number; (10.45% in number in the project of this case; (2) the need for flood prevention in light of the changes in the project of this case as measures for flood prevention in the future of this case; and (3) the need for flood prevention in the future of this case cannot be found to have been found to have not been established for the river basin improvement project, such as the installation of a flood control area and the renewal of the plan for future flood prevention.

In addition, the lower court rejected the Plaintiffs’ assertion that the installation of a water source project is inappropriate in light of the following: (i) the water quantity of the river in the Nakdong River basin (67 cubic meters/the beginning) used in calculating the estimated water shortage in the long-term comprehensive water resource plan does not reach the necessary volume (79 cubic meters/the beginning) for the conservation of the original water quality; and (ii) the lack of water quality in consideration of the lack of water for the river maintenance, it is necessary to secure water above 1.3 billion cubic meters in 2016 in 2016; (ii) there is a need to secure additional construction of a new dam to secure additional water; (iii) there is no need to secure the water quality of the river through the four major river projects; and (iv) there is no need to secure the whole water quality of the four major river projects, including the installation of the water source project; and (iii) there is a lack of adequate means to ensure the installation of the water source project, such as the total water quality increase in the area of the river.

Then, the lower court determined that the Plaintiffs’ assertion that the level of planning management is insufficient in prediction of damage and countermeasures due to installation and countermeasures in light of the following circumstances as stated in its holding, including ① selection and management of 34 priority control stations, introduction of reduction measures for non-point pollution sources, and establishment and strengthening of discharge standards for source of pollution discharge facilities, and the seriousness of water pollution volume improvement and the deterioration of water quality by non-point pollution sources, which are limited only to BOD, might considerably contribute to the improvement of the water quality of the Nakdong River. The need for the improvement of water quality and the appropriateness of the means thereof are recognized. ② The instant environmental impact assessment in the instant environmental impact assessment was designed to estimate damage to the surrounding areas due to the increase in groundwater level and to reduce damage therefrom, and the planning management level was changed from 7.5m to 5m of eL.5m to 5.0m of eL.

C. According to the reasoning of the judgment below and evidence duly adopted, ① The creation of an ecological river in eight districts with a total project cost of at least 50 billion won, the construction of two dams including the Nakdong River basin river basin, the construction of the river basin dam and the permanent dam, and six agricultural reservoir projects for the six branches, etc. The preliminary feasibility study was conducted on the total of 17 units projects, and the benefit and cost ratio (referring to the economic feasibility where the ratio is greater than 1) of the implementation of the project is 0.92 through 3.46, and the implementation of the project is more than 1.0 of the 15 projects, and there is a lack of reasonable outcomes from the analysis and implementation of the basic plan for the improvement of the environment and the implementation of the national economy, and there is a lack of reasonable outcomes from the analysis and implementation of the basic plan for the improvement of the environment and the implementation of the new water quality of the project.

Examining these circumstances and the reasoning of the lower judgment in light of the foregoing legal doctrine as well as the various circumstances revealed in the record, the lower court’s aforementioned determination is acceptable, and there were no errors by misapprehending the legal doctrine on the defects in weighing the interests of administrative plans.

6. As to the plaintiffs' grounds of appeal on the assessment judgment

As seen earlier, the lower court recognized that each of the dispositions of this case was erroneous in the course of preliminary feasibility study required by the former National Finance Act, and rejected the claim for revocation of each of the dispositions of this case by an assessment judgment on the grounds as stated in its reasoning, notwithstanding its illegality.

The allegation in the grounds of appeal in this part is based on the premise that the lower court’s determination that dismissed the claim for revocation by a ruling of assessment was unlawful, since the revocation of each of the dispositions in this case accords with the public welfare.

However, the part of the lower court’s determination that each of the instant dispositions was unlawful because it did not go through the preliminary feasibility study procedure is identical to the foregoing. Therefore, the lower court’s determination that was conducted on a different premise cannot be maintained. Ultimately, the legitimacy of the determination on the assessment judgment and the allegation in the grounds of appeal disputing such determination should not be determined on the allegation in the grounds of appeal, and the part of the lower judgment regarding each of the instant dispositions, which became the object of the

7. Conclusion

Therefore, among the judgment of the court below, the part on the plaintiffs' request for revocation of each disposition of the same case stated in the table of "the list of plaintiffs standing to sue by disposition No. 3." of the judgment of the court below is reversed, but this part of the case is sufficient for this court to directly judge. Thus, as seen above, the above plaintiffs' request for revocation of each disposition of this case should be dismissed. As such, the judgment of the court of first instance is just, and the above part of the judgment of first instance is dismissed. All appeals by the above plaintiffs are dismissed, and all appeals by the plaintiffs except for the remaining claims by the above plaintiffs and the above plaintiffs are dismissed, and the appeal by the plaintiffs except for the above plaintiffs are dismissed. The plaintiff's appeal against the above part of the judgment of first instance is dismissed, and the total costs of lawsuit (including the part due to intervention) after the appeal between the plaintiffs and the defendants are filed. The costs of appeal between the plaintiffs other than the above plaintiffs and the defendants are assessed against the remaining plaintiffs including the part resulting from the participation. It is so decided as per Disposition by

[Attachment 1] List of Plaintiffs (Appellants): Omitted

[Attachment 2] List of Plaintiffs (Appellee and Appellant): omitted

Justices Kim Yong-deok (Presiding Justice)