2018Nu72637A, including confirmation of invalidity of a permit disposition for wind power generation projects

B

Attorney Jeong-hee, Counsel for the defendant-appellant

1. The Minister of Trade, Industry and Energy;

Law Firm Young-jin et al., Counsel for the defendant

Attorney Lee Do-min

2. The Minister of Environment;

F. F. Corporation

Law Firm Young-jin et al., Counsel for the defendant

Attorney Lee Do-min

July 19, 2019

December 20, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

(1) On December 24, 2007, Defendant Ministry of Trade, Industry and Energy confirms that a license disposition for wind power generation business against Defendant C on December 24, 2007 is invalid.

Preliminaryly, the above defendant's rejection disposition against the plaintiff on January 1, 2017 is revoked.

(2) On November 21, 2007, Defendant Ministry of Environment confirms that prior environmental review consultation conducted by the above Defendant for permission for wind power generation projects is invalid.

Preliminaryly, it is confirmed that there is no prior consultation on the prior examination of environmental impact on the area Drriwon-gun for the permission for wind power generation project.

1. Basic facts

The grounds for the judgment to be stated in this part shall refer to the part concerning "the details and details of the disposition, etc. 1." between the two through three pages of the judgment of the first instance in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The grounds for a judgment with respect to the claim against the Minister of Environment are cited in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, “3. Determination as to the claim against the Minister of Environment.”

The notification of this case does not directly cause any direct legal change in the legal status of the other party or other interested persons, but does not directly affect their legal status or rights and obligations, and it does not require the notification of this case to be approved for the specific project.

Therefore, the main claim seeking confirmation of invalidity of the instant notification and the conjunctive claim seeking confirmation of absence is all unlawful.

3. Request to the Minister of Trade, Industry and Energy;

(a) The primary claim

1) Summary of the Plaintiff’s assertion

(1) The instant permission disposition is unlawful as it is based on the prior consultation of the Minister of Environment with the Minister of Environment, which is null and void after excluding the area subject to review. The instant permission disposition was made based on the content of the instant permission that belongs to the wind power generation type, power generation quantity, power transmission quantity, etc. The instant permission disposition is unlawful. Since such illegality is serious, the instant permission disposition is null and void.

(2) Although the instant project cannot be subject to acquisition by transfer, C was illegal since it transferred the instant project to the Defendant’s Intervenor after the instant permission disposition. Such illegality is serious and apparent, and thus, the instant permission disposition is null and void.

(3) The instant permission disposition was invalidated due to a false operation of the permit for the electric generation business related to the extension of the preparation period under the Electric Utility Act, and the permission for the electric generation business for the Defendant’s Intervenor was made after the lapse of the preparation period under the Electric Utility Act. In addition, the instant permission disposition was invalidated due to the merger of the Defendant’s Intervenor C without obtaining authorization from the Electrical Affairs Commission under the Electric Utility Act. Furthermore, the instant permission disposition was invalidated due to the increase in the business area, which was not subject to prior review and re-consultation under the Framework Act on Environmental Policy. Accordingly, the instant permission disposition is invalid.

(ii) the invalidity of an administrative disposition

In order for an administrative disposition to be null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and the defect is objectively obvious as serious violation of the important part of the law. In determining the importance of the defect, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself. In addition, in a case where an administrative disposition was rendered by applying a certain provision to a certain legal relationship or fact-finding, despite the lack of room for dispute over the interpretation of the law, the legal principles as to the legal relationship or fact-finding are clearly stated, and thus, if an administrative disposition was rendered by applying the above provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation of the law because the legal principles as to the legal relation or fact-finding are not clearly revealed, it is merely erroneous as to the fact of the disposition requirements (see, e.g., Supreme Court Decisions 2009Du2825, Feb. 10, 209).

A plaintiff who has filed an administrative lawsuit seeking the invalidity of an administrative disposition as a matter of course is liable to assert and prove the grounds for such administrative disposition’s invalidity (see, e.g., Supreme Court Decisions 9Du11851, Mar. 23, 200; 20093460, May 13, 2010).

3) The instant permission disposition

(1) If a disposition, such as business permission, was taken without going through such a review procedure, its disposition may be deemed to be unlawful, but if the content of the prior review of environmental feasibility was conducted, such a disposition may not be deemed to be unlawful. However, even if the content of the prior review of environmental feasibility is somewhat defective, so long as it is not different from that of the legislative purport of the prior review of environmental feasibility, it is difficult to achieve the legislative purport of the prior review of environmental feasibility, and so long as it is not different from that of the prior review of environmental feasibility, it is merely a single element to determine whether there was a deviation or abuse of discretion from the pertinent disposition such as the pertinent permission, etc. due to such defect, and it is reasonable to view that the pertinent disposition such as the pertinent permission, etc., naturally does not constitute an invalidation as a matter of course, due to the existence of a grave and obvious defect (see, e.g., Supreme Court Decisions 9Du902, Jun. 29, 2001; 2006Du330, Mar. 16, 2006).

The evidence submitted by the plaintiff alone is insufficient to recognize that C applied for a business license of this case with a false power generation volume, etc. stated in the application filed by the plaintiff, and the Minister of Trade, Industry and Energy is aware of such fact, and there is no other evidence to acknowledge it.

(2) Article 10 of the Electric Utility Act recognizes the acquisition by transfer of all or part of the electric utility business or the merger of a corporation that is an electricity service provider, and the plaintiff's assertion that the acquisition by transfer of the electric utility is impossible

The issue of illegality of administrative disposition shall be determined based on the law and factual state at the time of administrative disposition, and it shall not be affected by the amendment of the law or changes in the actual state after the disposition (see, e.g., Supreme Court Decisions 95-8461, Nov. 10, 1995; 2007Du1811, May 11, 2007). Thus, even if C transferred the instant project to the Defendant’s Intervenor after the instant permission disposition, it may not affect the invalidity of the instant permission disposition.

(3) There is no evidence to prove that the permit for the electricity generation business related to the extension of the period of preparation under the Electric Utility Act was falsely operated, or that the permit for the electricity generation business for the Defendant’s Intervenor was made after the lapse of the period of preparation under the Electric Utility Act. Moreover, there is no evidence to prove that the Defendant’s Intervenor did not obtain authorization after deliberation by the Electrical Affairs Commission in the merger of C. There is no evidence to prove that there was a change in the scale of business that meets the requirements for prior consultation on environmental review under Article 26-2 of the Framework Act on Environmental Policy after the instant permit disposition. The scale of business claimed by the Plaintiff as

4) Sub-determination

Therefore, the permission disposition of this case cannot be deemed null and void due to the apparent defect of the permission disposition of this case, and the permission disposition of this case cannot be deemed null and void. Therefore, the primary claim seeking nullification of the permission disposition of this case is without merit.

(b) The reasons for the judgment with regard to the entry of the preliminary claim shall be referred to in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, whichever is six (c) of the judgment of the first instance."

Thus, the preliminary claim seeking cancellation of the reply of this case is unlawful.

4. Conclusion

Therefore, the plaintiff's main claim and ancillary claim against the Minister of Environment are all dismissed. The plaintiff's main claim against the Minister of Trade, Industry and Energy is dismissed as it is without merit, and the plaintiff's main claim against the Minister of Trade, Industry and Energy is dismissed as it is unlawful and dismissed. Since the judgment of the first instance court is consistent with this conclusion, the plaintiff's appeal is dismissed as it is without merit.

The presiding judge, judge and assistant judge

Judge Go-young

Judges Lee Jae-won