[1] Whether acceptance of the report of factory establishment can be denied (negative), and whether an order to adjust the factory location is subject to appeal litigation (affirmative)

[2] The case holding that an order to adjust the location of a ready-mixed factory is lawful on the grounds that the environmental hazard is anticipated to occur due to the discharge of pollutants after a land transaction permit was granted

[1] If a report on factory establishment meets all the formal requirements under Article 13(1) of the Industrial Placement and Factory Construction Act, Article 19(1) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 14315 of July 4, 1994), and Article 6(1) of the Enforcement Rule of the same Act (amended by the Ordinance No. 2 of the Ministry of Trade, Industry and Energy of December 30, 1994), the head of the Si/Gun/Gu shall accept it once. If the reported matters fail to meet the location criteria under the same Act, the head of the Si/Gun/Gu may recommend the change of factory location or the installation of facilities to meet the location criteria as prescribed under the same Act. If the person so recommended fails to comply with the recommendation, the head of the Si/Gun/Gu may issue a written confirmation of factory establishment report, and if the person fails to comply with it, the head of the Si/Gun/Gu may refuse to accept the report itself, and Article 52 of the Factory Placement Act provides for an appeal order.

[2] A local government has a duty to allow residents to live in a pleasant environment. In this case, if there is a person who intends to build a factory in such a pleasant environment, such a situation is likely to cause harm to residents with the right to live in such a pleasant environment, the local government may, as a matter of course, recommend the change of the factory location pursuant to Article 9 of the Industrial Placement and Factory Construction Act, and may order the non-compliance person to change the factory location or adjust the plan for factory establishment. On the other hand, if the establishment of a ready-mixed factory is likely to cause serious harm to the environment, and if the establishment of a factory is in violation of the public notice of the Ministry of Trade, Industry and Energy under Article 8 of the same Act and this public notice of the Ministry of Trade, Industry and Energy under this provision, even if the local government with jurisdiction over the company permits land transactions and grants land transactions permission, it cannot be deemed unlawful on the grounds of the principle of protection of trust in order to protect the high value of the basic value in a pleasant environment.

[1] Articles 13(1) and 52 of the Industrial Placement and Factory Construction Act, Articles 13 and 19(1) and (2) of the former Enforcement Decree of the Industrial Placement and Factory Construction Act (amended by Presidential Decree No. 14315 of July 4, 1994), Article 6(1) of the former Enforcement Decree of the Industrial Placement and Factory Construction Act / [2] Article 35 of the Constitution of the Republic of Korea, Articles 8 and 9 of the Industrial Placement and Factory Construction Act, Article 13 of the former Enforcement Decree of the Industrial Placement and Factory Construction Act (amended by Presidential Decree No. 14315 of July 4, 1994), Articles 4 and 6 of the Framework Act on Environmental Policy

[1] Supreme Court Decision 92Nu1674 delivered on June 26, 1992 (Gong1992, 2301) Supreme Court Decision 93Nu15922 delivered on June 28, 1994 (Gong1994Ha, 2124)

Han Industrial Development Co., Ltd. (Attorney Choi Jong-soo et al., Counsel for the defendant-appellant)

Kimpo-gun

Seoul High Court Decision 94Gu23083 delivered on July 5, 1995

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court first recognized the circumstances of the instant administrative disposition as follows.

On April 7, 1976, the Plaintiff Company was established for the business of ready-mixed manufacturing, etc. with land transaction permission from the Defendant on December 29, 1993, and was in use as the factory site for the existing sanitary food container manufacturing factory in Gyeonggi-gun, Kimpo-gun, Kimpo-gun, 616-1 large 6,069 square meters, 616-2 large 1,802 square meters, 616-3 large 2,716 square meters, and 10,587 square meters of factory site for the same 9,98 square meters (hereinafter referred to as the “instant factory site”) on the ground that it purchased from Daepo-gun Co., Ltd. the factory site for the same 36932 square meters and new industrial classification number, and submitted a report on the alteration of the factory site area and its neighboring facilities to the Defendant on February 54, 1994, which would hinder the Plaintiff’s installation of a residential environment near the factory site for the same 26th square meters.

Furthermore, the court below held as follows that the order of this case where the defendant did not have any legal ground for issuing an order for the coordination of factory location of this case, and the plaintiff's report did not accept the plaintiff's report for the same reason does not violate the Public Notice of the Ministry of Trade, Industry and Energy (former Ministry of Trade, Industry and Industry, hereinafter referred to as the "Ministry of Trade, Industry and Industry") concerning the standards for factory location, and the manufacturing business of ready-mixed is not an urban business, but an urban area under the Act on the Utilization and Management of the National Territory, and the factory site of this case is an urban area under the Act on the Utilization and Management of the National Territory, and is located far from 100, or more than 100, and a spo field and sposstove growing business operator agreed to establish the factory of this case by preparing the pollution prevention facilities under the relevant Acts and subordinate statutes, and even if it did not cause any particular damage to neighboring residents, the order for coordination by the defendant was unlawful.

If the factory of this case was established, as alleged by the defendant, it is insufficient to recognize the fact that a serious environmental hazard problem occurs due to the discharge of pollutants as indicated in the Ministry of Trade, Industry and Energy No. 93-10 ( February 24, 1993) of the Ministry of Trade, Industry and Industry Notice No. 93-10 ( February 24, 1993), and then, in order to determine the plaintiff's assertion, the following facts

On November 5, 1993, the factory site of this case was previously used as a site for a sanitary food container manufacturing business. The company concluded a provisional contract to sell 5,000,000,000 won to the Plaintiff on November 5, 1993, and obtained land transaction permission from the Defendant. Accordingly, on December 2, 199 of the same year, the Plaintiff Company filed an application for land transaction permission with the Defendant, accompanied by a project plan, factory placement plan, pollution prevention plan, etc. to ensure that the land use purpose is satisfied with the permission standards, and the Defendant also participated in the regional economy, industrial, environmental protection and other related departments, etc., the competent department for reporting the construction of factories, other than the urban land transaction permission department, and also requested the Plaintiff to supplement whether the above ready-mixed business was used for pollution prevention, water use, etc. on several occasions, and the Plaintiff’s above ready-mixed project is obviously inappropriate for the sound development of the relevant area under the Act on Land Use and Preservation for the Natural Environment within 10th anniversary of the Act.

On February 7 of the same year, the plaintiff filed a report on the change of the factory site of this case with the military unit on February 8 of the same year, and the response was delayed on March 18 of the same year. However, from March 16 of the same year, the residents of the Gun were able to see the new construction of other ready-mixed factories within the jurisdiction of the defendant Gun, and the residents of the Do adjacent to the factory site of this case are likely to suffer inconvenience due to noise and dust, and there was a concern that the residents of the 5th anniversary of the new-use factory site of this case were likely to suffer damage to the residents of the same 6th anniversary of the new-use factory site of this case, and that the 5th anniversary of the new-use factory site of this case were located within the 0th anniversary of the new-use factory site of this case, the 5th anniversary of the new-use factory site of this case, and that the 10th half of the new-use factory site of this case were located within the 0thirth 40thm.

The manufacturing process of ready-mixed is likely to be mixed with water, sand, and gravel. It is likely to be used within 2 hours after its manufacture. Dust, cement dust, etc. were scattered and some noises were generated in the materials storage and mixture process, but ready-mixed factories can be installed within a city where environmental protection is more necessary than other specific use areas. At the latest, there are many factories established in a large city or in an rural area where ready-mixed factories are located in a house or rural area. The plaintiff installed a distribution plant which manufactures ready-mixed factories in the factory site in this case within 0 hours after its manufacture. The plaintiff constructed a distribution plant which manufactures high-water, such as noise, dust, waste water, etc., 200 to prevent the generation of waste water and waste water supply facilities in the vicinity of the 1st industrial complex, 3rd-water purification facilities (BGGLTE) to prevent the generation of waste water and waste water supply facilities, and 3rd-water treatment facilities in the vicinity of the 2nd industrial complex.

Based on the above facts of recognition, the factory site in this case is located within the area where the construction of an urban-type factory is permitted, and is located far away from the surrounding village of 40 or more, and even if the construction of an ready-mixed factory in the area reported by the plaintiff, it is difficult to see that it violates the permissible emission levels under the laws and regulations governing environmental pollution prevention facilities under the laws and regulations, so it is difficult to see that there is a concern about significant harm to nearby residents or farmland, or that there is a substantial harm to the natural conditions such as the environment in the relevant area, etc., and if the plaintiff makes the above pollution prevention facilities required by environmental laws and regulations, it is judged that the considerable part of noise is removed, and the emission of the above materials can be reduced below the permissible emission levels under the Clean Air Conservation Act and the Noise and Vibration Control Act, if the manufacturing factory site in this case is established, it is also unlawful in that the defendant's factory location is also determined that the manufacturing process and transportation time, dust, noise, drinking water, environmental pollution, etc. is anticipated.

2. Regarding ground of appeal No. 1

According to the provisions of Article 13(1) of the Industrial Placement and Factory Construction Act (hereinafter referred to as the “Industrial Placement Act”), Article 19(1) and (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14315, Jul. 4, 1994; hereinafter referred to as the “Enforcement Decree”), Article 6(1) of the Enforcement Rule of the same Act (amended by the former Enforcement Rule No. 2, Dec. 30, 1994; hereinafter referred to as the “Enforcement Rule”), a person who intends to establish or extend a factory of not less than 200§³ shall submit a report on change of factory location to the head of the Si/Gun/Gu before commencing the construction, and if the head of the Si/Gun/Gu receives a report on change of factory location, he/she shall issue a written confirmation of change of factory location to the person who shall comply with the notification of change of factory location to the head of the Si/Gun/Gu within the prescribed period of time prescribed by the Presidential Decree.

The judgment of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the subject of an appeal litigation, and contrary to this, only recommendations for change of factory location, which is not an order for adjustment of factory location, shall not be subject to an appeal litigation. Accordingly, the ground of appeal pointing this premise that the lawsuit of this case was subject to the appeal

3. As to the grounds of appeal Nos. 2 and 3

Article 35(1) of the Constitution provides that all citizens shall have the right to live in a healthy and pleasant environment. The Framework Act on Environmental Policy enacted pursuant to this Constitution provides that the State shall be responsible for formulating and implementing an environmental preservation plan to prevent environmental pollution and danger and injury and the local government shall be responsible for formulating and implementing such plan in accordance with the State’s environmental preservation plan in consideration of the regional characteristics within its jurisdiction (Article 4), and that all citizens shall have the right to live in a healthy and comfortable environment and endeavor to cooperate with the State and local governments for environmental preservation and to strive for environmental conservation (Article 6). Meanwhile, Article 8 of the Industrial Placement Act provides that the Minister of Trade, Industry and Energy shall determine and publicly announce the standards for factory sites in consultation with the head of the relevant central administrative agency and shall give public notice of the foregoing restrictions on factory sites in order to protect the environment of high-quality factories (including facilities and materials). Under this provision, the Ministry of Trade, Industry and Energy shall give public notice to the residents of the Ministry of Environment as stipulated in Article 86-10 of the Enforcement Rule of the Building Act (Public Notice).

Therefore, as stated in the judgment of the court below, since the defendant's application for the establishment of the ready-mixed factory of this case is adjacent to the area of 3,400 residential areas in Gyeonggi-gun Kimpo-gun, the smallest distance of 40 to 50, and residents live in the area of 104 houses located within the radius of 400, and there are 470 houses located within the radius of 153-2 and 3 of neighboring grain, and there are high-quality dry field and 12 marries 5,000 marries and 200 mar mar 200 mar mar mar 200 mar mar 5,00 mar mar mar 20 mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar 609 mar mar m.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)