[Defendant-Appellee] Korea Development Corporation (Attorney Kang Jong-soo et al., Counsel for defendant-appellee)

The Gangwon-do Governor

Gyeong-dong University (Law Firm Rate, Attorneys Go Young-chul et al., Counsel for defendant-appellant)

June 9, 2011

Chuncheon District Court Decision 2007Guhap632 Decided October 29, 2009

1. The plaintiff's appeal is dismissed.

2. The appeal cost (including the part arising from the supplementary participation) shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's decision on December 29, 2006 against the intervenor assisting the defendant (hereinafter referred to as "participating") shall be revoked. The designation of the district for protection of the Nowon-si hot spring source shall be revoked.

1. Basic facts

The court's explanation on this part is as follows: "The defendant added the part of the 3rd court's 6th court's 6th court's 6th court's 6th "from 7th court's 2007.1.2" to "the 6th court's 6th court's 6th court's 10th 6th 6th 6th "the 6th court's 4th court's 2004.12th court's 2004.12th court's 2004.12th court's 4th court's 10th 1th 5th court's 205th court's 1th 207th 4th court's 1th 1th 4th 4th 100 "the 1th 202.22th 2002." "the 2nd court's 201th 5th 5th 2017th court'

2. Related statutes;

The reason why the court's explanation concerning this part is as follows: "(1) of the attached Form 25 of the judgment of the court of first instance (amended by Act No. 8337 of Apr. 6, 2007)" is "(amended by Act No. 8852 of Feb. 29, 2008)" and "(amended by Presidential Decree No. 20741 of Feb. 29, 2008)" is "(amended by Presidential Decree No. 20741 of Feb. 29, 2008)" and "(amended by Presidential Decree No. 22320 of Aug. 4, 2010)" in the second half of the attached Form 29 (amended by Act No. 6842 of Dec. 30, 2002) and "Article 288 of the Civil Procedure Act (amended by Act No. 7856 of Mar. 38, 2006)."

3. Determination on the defense prior to the merits

The court's reasoning concerning this part is as follows: "The Hot Spring Act prior to the amendment on April 6, 2007" in the 13th of the judgment of the court of first instance with "the Hot Spring Act prior to the amendment on February 29, 2008" as "the Hot Spring Act prior to the amendment on February 29, 2008"; "the former Enforcement Decree of the Hot Spring Act prior to the amendment on February 29, 2008" as "the former Enforcement Decree of the Hot Spring Act prior to the amendment on February 29, 2008," and "the former Enforcement Decree of the Hot Spring Act prior to the amendment on August 4, 2010" as "the latter Enforcement Decree of the Hot Spring Act prior to the amendment on August 4, 2010" as "the latter part of the judgment of the court of first instance as stated in Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act."

4. Judgment on the merits

A. Whether Article 4 (1) (5) (hereinafter “Article 4 (5) of the former Hot Spring Act”) of the Hot Spring Act was violated before the amendment on February 29, 2008

(1) The plaintiff's assertion

The reasoning for this Court’s explanation is as stated in Section 4-A(1) of the reasoning of the judgment of the first instance except that the “Article 4(5) of the Hot Spring Act prior to the amendment on April 6, 2007” is “Article 4(5) of the former Hot Spring Act” of Section 8 of the judgment of the first instance is as stated in Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act are cited as it is.

(2) The purport of Article 4(5) of the former Hot Spring Act

The court's reasoning for this part is as follows. Each "The Hot Spring Act prior to the amendment of April 6, 2007" in Articles 8, 12, 18, 12, 16, and 21 of the judgment of the court of first instance shall be treated as "former Hot Spring Act". "The Enforcement Decree of the Hot Spring Act prior to the amendment of February 29, 2008" in Article 8 shall be regarded as "the Enforcement Decree of the Hot Spring Act prior to the amendment of August 4, 2010". "The plaintiff shall make a determination according to whether it is 11" in Article 4 (5) of the former Hot Spring Act (the plaintiff shall not designate two or more hot spring source protection districts within an area with the same hot spring source source" in Article 4 (2) of the same Act, but it shall not be justified after the amendment of the former Enforcement Decree of the Hot Spring Act in light of the purport of Article 8 (2) of the same Act or the purport of Article 40 (4) of the same Act.

(3) Whether the hot spring source protection district has an impact on the hot spring hole

(A) Facts of recognition

The court's reasoning for this part is that "in the hot spring source protection district of the court of first instance" of No. 15 of the 13th judgment is "in the area of hot spring source reserve (area)" of No. 15 of the 13th judgment, and "in the area of hot spring source reserve (area)" of No. 2.9 millionth judgment of the court of first instance, and "in the area of hot spring source reserve (area)" of No. 16 below the 16th judgment [the ground for recognition] added "No. 15-5, No. 28,31, No. 16-4, No. 17, No. 17, and No. 7" to "in the same manner as the reasons for the judgment of the court of first instance". Thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

(B) Determination

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except for the removal of the part of the 10th 17th 10th 10th 10th 10th 17th 17th 17th 10th 10th 10th 10th 10th 10th 10th 10th 10th 10th 13th 10th 10th 10th 10th 13th 10th 10th 10th 10th 10

B. Whether a report of hot spring discovery and a disposition are illegal

(1) The plaintiff's assertion

Article 17(2) of the former Hot Spring Act (wholly amended by Act No. 7856, Mar. 3, 2006) where a person who has discovered a hot spring reports the location, depth, diameter, etc. of a hot spring hole, and where the reported hot spring is deemed worth developing and utilizing the hot spring as a result of inspection, such as the water temperature, quantity, water quality, etc. of the hot spring, the reported market shall repair the hot spring only when it satisfies the requirements, considering the matters listed in Article 13(2) of the Enforcement Rule of the Hot Spring Act, and where the report falls under any subparagraph of Article 13-2 of the Enforcement Rule of the Hot Spring Act, the report must be returned. Since a report of hot spring discovery by an intervenor becomes null and void on the ground that the report of hot spring discovery by a hot spring market is deemed null and void on the ground that it does not fall under a serious and serious defect, even if the report of hot spring discovery is combined with the disposition of this case, and thus, the disposition of hot spring discovery report, which is a disposition of this case, is unlawful.

① On March 3, 2006, an intervenor violated the provisions relating to land excavation permission under the Hot Spring Act by making a excavation report based on the provisions related to the Groundwater Act and discovering hot spring for the purpose of evading restrictions on permission for land excavation under Articles 8 and 9 of the Hot Spring Act before the revision.

② An intervenor has reported that he/she excavated up to 400 meters underground for the purpose of the development and utilization of groundwater and actually violated the Groundwater Act by excavating up to 500.3 meters underground in violation of the content of the report.

(3) The nanotechnology hot spring hole found by the intervenor shall be deemed to be a neighboring area in which a report of hot spring discovery has already been accepted, and which is deemed to be a hot spring source.

④ On November 2002, a report on the hot spring hole inspection by the Young River District Hot Spring hole inspection and a report on the impact on nearby hot spring and underground water holes was evaluated and accepted by the intervenor's report on hot spring hole discovery by using the Korean construction engineering, which has errors and defects in calculating the adequate daily pumping capacity, and impact on nearby hot spring and underground water.

(2) Facts of recognition

The reasons why this Court shall explain in this part are the following: (a) the 19th court ruling under section 18 of the 19th court ruling

At the time of accepting the report, the review was conducted to determine whether the requirements of the subparagraphs of Article 13(2) of the former Enforcement Rule of the Hot Spring Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 0212, Dec. 30, 2003) are met, and the contents are as follows.

본문내 포함된 표 검토사항 결과 비고 제1호 · 근거 : 온천공검사 적합 · 온도 : 41.2℃ · 목욕원수 기준에 의한 대장균 불검출 제2호 · 근거 : 온천공검사 적합 · 일일 적정양수량 : 763㎥/일 · 수위강하 : 41.7m 제3호 · 근거 : 온천공영향검사 영향 없음 · 인근 지하수의 유입은 불가능하며, 온천공의 양수로 인한 인근 지하수공의 영향은 없을 것으로 판단 제4호 · 온천수 인근 하천으로 직접 방류 방지 ⇒ 청초천 하수차집 및 하수처리장 오수처리 적합 · 지하수 고갈 및 오염대비 ⇒ 온천이용허가시 적정양수량 결정 등 제5호 · 온천수요전망 적합 - 기숙사 전용 공급계획 : 4개동 2,000명 정도 · 주변여건 - 시가지 외곽 농촌지역으로 대학내 기숙사시설 등에 활용하며 - 주변지역과 조화 도모 제6호 · 발견신고토지 : 노학동 745-5(소유권 : 학교법인 경동대학교) 적합 · 인근토지현황 : 붙임 1. 참조

[....]

in addition, under section 15 of title 20, the following facts:

“A participant” obtained permission for the extension of the term of validity of the permission for the development and utilization of groundwater from the Si of the Si of the Si of the Gu around November 7, 1994, around September 2, 1996, around June 30, 1997, around June 18, 199; around June 30, 2009; and around June 3, 2002, 10 and 10 out of the Si of the Si of the Si of the Si of the Si of the Si of the Gu of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Si of the Gu of the Si of the Gu of the Si of the Si of the Gu.

A. The reasoning of the judgment of the first instance court is the same as that of Article 4-b.(3) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act, except for adding “A evidence No. 11, B evidence No. 26, and fact-finding results on the original market of this court” to the 20th or lower grade [founded ground for recognition]. As such, this is cited in accordance with Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act

(3) Determination

(A) According to the above facts and the above macroscopic evidence, the intervenor's hot spring hole (SC-1 hole) which reported the hot spring discovery to the Seocho-si City Mayor on August 23, 2002 meets all the requirements of each subparagraph of Article 13 (2) of the former Enforcement Rule of the Hot Spring Act (amended by Ordinance of the Ministry of Government Administration and Home Affairs No. 0212, Dec. 30, 2003). The plaintiff's assertion related to excavation depth is not deemed to have been discovered in violation of the contents or procedures of the Hot Spring Act or the Groundwater Act (the plaintiff's assertion related to excavation depth and the hot spring hole inspection report prepared by the Korean construction engineering). Thus, it does not constitute a ground for return under Article 13-2 subparagraph 3 of the above Enforcement Rule.

(B) The Plaintiff asserts that the Intervenor’s report of hot spring discovery constitutes a ground for return under Article 13-2 subparag. 2 of the Enforcement Rule, because the Intervenor’s report of hot spring discovery falls under the Plaintiff’s hot spring discovery in the “area where the hot spring source is deemed to be the same as that of the previous hot spring hole.” However, Article 9(1)2 of the Hot Spring Act prior to the amendment on March 3, 2006, which was in force at the time, only stipulates that where the lineal distance between the existing hot spring hole and the hole to be excavated is within 300 meters, the permission for excavation may not be granted after hearing the opinion of a hot spring specialized agency, and it does not provide for the scope of the neighboring area. As seen earlier, the Intervenor’s hot spring hole does not have any particular impact on the Plaintiff’s hot spring hole or the existing neighboring underground groundwater hole, and it does not seem that is likely to cause damage to public interest, such as environmental pollution, and thus does not constitute a ground for return of Article 13-2 subparag. 2 of the Enforcement Rule.

(C) The plaintiff asserts that it is illegal as it is based on the report of an inspection agency which has errors in the report of hot spring discovery and repair disposition of the existing hot spring market. However, as seen earlier, it is reasonable and reasonable to consider that the report is reasonable as a hot spring hole in the evaluation of the quantity, water temperature and water quality, which are three elements of hot spring in the result of the examination of the Korea Construction Engineering. The examination item of a specialized hot spring examination institution required by the hot spring examination act and subordinate statutes does not include "the impact on the human hot spring," and the prosecutor of the hot spring can directly operate the hot spring, and the criteria for the acceptance of the report are stipulated as "the time when the relevant hot spring is deemed worth developing and using the hot spring," and it is only presumed that reasonable discretion is presumed to exist in the determination, and it is not necessary to determine whether to accept the report as bound by the results of the examination by a specialized hot spring examination institution. Thus, the plaintiff's above assertion is not acceptable (the same shall apply as

C. Whether the instant disposition was a deviation or abuse of discretionary power

The court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning for this decision is the same as that of Article 4-3 (c) of the reasoning of the judgment of the court of first instance.

D. Whether the instant disposition violated the principle of trust protection

(1) The plaintiff's assertion

In designating a hot spring source protection district, the Defendant, after undergoing an examination by a specialized hot spring examination institution, set forth and publicly announced the scope of “uninhabited area” which is the same as “the same hot spring source” under Article 4(5) of the former Hot Spring Act. The Plaintiff trusted that the Plaintiff does not enter additional hot spring-related facilities within the area reserved for the hot spring source. From around 2003, the Plaintiff completed a design to develop additional accommodation facilities and resort cultural facilities, other than the hotels already operated, and purchased land, including land, from the Joi-dong (number 1 omitted) at approximately KRW 3 billion. The instant disposition that designated the Intervenor’s Nowon-dong hot spring source protection district immediately next to the Plaintiff’s hot spring source protection district immediately adjacent to the relevant hot spring source protection district, is unlawful as against the Plaintiff’s trust in expressing public opinion.

(2) Determination

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of administrative agencies, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency's opinion statement that is justifiable and trusted to the trust of the individual should not be attributable to the individual, third, the individual should have trusted the opinion statement, third, the administrative agency should have taken any action against the above opinion statement, fourth, the administrative agency should have taken any action against the above opinion statement, thereby infringing the individual's interest in trust, and last, when taking the administrative disposition in accordance with the above opinion statement, it should not be likely to seriously undermine the public interest or legitimate interests of third parties.

In this case, in addition to the purport of the argument in the statement of No. 24-1 through No. 14, the plaintiff's representative director's acquisition of a number of lots of land located in the Young-si, Young-si, 2008. However, the defendant, an administrative agency, expressed a public opinion to the plaintiff, such as publicly announcing another hot spring source protection district in the vicinity of the hot spring source protection district, or there is no evidence to support that the plaintiff, without any reason, trusted the defendant's opinion and conducted any act corresponding thereto. Rather, according to the statement of No. 16-3 of the evidence No. 16-3, the plaintiff's assertion that the plaintiff acquired the defendant's public opinion name in the name of the non-party under the non-party's trust of the defendant's public opinion name is not only a lot number 2 omitted, (number 3 omitted), (number 4 omitted), (number 4 omitted), and (number 5 omitted), but also a land which had already been changed and designated as a hot spring source protection district.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-ho (Presiding Judge)

(1) Article 4 was newly established upon the amendment of the Hot Spring Act on March 3, 2006. Article 4 was deleted at the time of the amendment by Act No. 1005 on February 4, 2010.