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서울행정법원 2007구합22825 판결
행위허가신청불허가처분취소
Cases

207Guhap22825 The revocation of revocation of permission to apply for action

Plaintiff

00

Defendant

The head of Gangseo-gu Seoul Metropolitan Government

Conclusion of Pleadings

November 14, 2007

Imposition of Judgment

November 28, 2007

Text

1. On January 2, 2007, the defendant revoked the disposition of non-permission for an act in a development restriction zone (oil storage facility) filed with the plaintiff on January 2, 2007.

2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. The Plaintiff is the representative director of the synthetic oil company, who had obtained permission from the Seoul Gangseo-gu Seoul Metropolitan Government XXdong - the petroleum retail business (melting agencies) whose sales area is nationwide, from August 14, 1980, engaged in the business of selling solvents.

B. On August 12, 1980, the Plaintiff was admitted to the Plaintiff due to an urban planning project and a housing site development project in Gangseo-gu Seoul Metropolitan Government with permission for installation of dangerous goods (storage place) around August 12, 1980, XX Dong - X - X - X - X - a site that was previously owned by the Defendant around December 2, 2006, which was a site located in the development-restricted area of Gangseo-gu Seoul Metropolitan Government Ydong - 3,203

Of 320 85 m, an application for permission for development activities aimed at installing oil storage facilities was filed.

C. On January 2, 2007, the Defendant rendered the instant disposition rejecting the Plaintiff’s application for permission to engage in the Plaintiff’s act in a development restriction zone (oil storage facility) on the ground that the Plaintiff’s oil storage facility did not fall under Article 13(1) and subparagraph 9(h) of attached Table 1 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zone Act”).

[Ground of recognition] Unsatisfy, Gap's entries in Gap's evidence 1-1 to 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties’ assertion

(1) The plaintiff's assertion

Since the Petroleum and Petroleum Substitute Fuel Business Act provides solvents as a kind of petroleum, facilities that the Plaintiff intended to install are oil storage facilities. The instant disposition denying the Plaintiff’s application is unlawful as it erred by misapprehending the statutes, or by abusing or abusing discretionary power.

(2) The defendant's assertion

(A) The "oil storage expenses" stipulated in subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act, which provides for the types of structures that can be installed with permission within a development restriction zone and the crime of installing them, shall be deemed to fall under such expenses only for the public interest as well as the facilities stipulated in each item of Article 9. However, the oil storage facilities that the Plaintiff intended to install are for private profit-making purposes, and thus does not fall under such expenses.

(B) Article 11(1) of the Development Restriction Zone Act provides that permission may be granted exceptionally while prohibiting, in principle, the installation of structures within a development restriction zone. Such exceptional permission constitutes a beneficial administrative act. However, considering the fact that there has been no permission for the same kind of acts so far and that it is difficult to grant permission to other similar cases when accepting the Plaintiff’s application, the instant disposition which rejected the Plaintiff’s application does not constitute an unlawful deviation from and abuse of discretion.

(b) Related statutes;

As shown in the attached Form.

(c) Determination.

(1) Whether the facilities that the Plaintiff intended to establish fall under subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act

Since Article 2 subparagraph 1 of the Petroleum and Petroleum Substitute Fuel Business Act defines "oil, natural gas and petroleum products" as petroleum, and defines solvents in subparagraph 2 (a) as petroleum products, there is no doubt that the storage facilities of solvents that the Plaintiff intended to establish are oil storage facilities themselves.

However, as claimed by the Defendant, it will be noted that the facility is not for private interest in the "oil storage and oil supply facilities" as stipulated in subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act.

Article 11(1)1 (h) of the Development Restriction Zone Act provides that "the installation of structures corresponding to public facilities, such as schools, waste disposal facilities, and power supply facilities, which are prescribed by Presidential Decree, may be done with permission." Article 13(1) of the Enforcement Decree of the Development Restriction Zone Act provides that "the types of buildings or structures under Article 11(1)1 of the Act and the scope of construction or installation shall be as specified in attached Table 1. In addition, attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act provides that "if an urban infrastructure falls under urban infrastructure and is more than a certain size, it shall be installed as urban planning facilities in common under subparagraph 9 of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act." However, the above attached Table 1 provides that "the scope of construction or installation of facilities is restricted only to urban planning facilities, or the type of facilities itself is defined as "facilities for the safe operation of national security and operation of oil supply facilities and oil supply facilities." On the other hand, the above attached Table 1 provides that "facilities are installed as urban planning facilities".

On the other hand, the National Land Planning and Utilization Act defines facilities prescribed by the Presidential Decree as infrastructure, which are distribution and supply facilities under Article 2 subparagraph 6 (c) of the same Act, as infrastructure, and Article 2 (1) 3 of the Enforcement Decree of the National Land Planning and Utilization Act defines oil storage and oil supply facilities as base.

In light of the structure and form of the above laws and regulations, "oil storage and oil supply facilities" under subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act are stipulated in itself as public facilities that can be permitted to be installed within a development restriction zone, and it does not require any separate public interest purpose to fall thereunder. In addition, as in Article 4 subparagraph 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Interest Projects for the Definition of Public Interest Projects, etc., there are cases where the State or a local government recognizes a special public interest in a case where a certain facility is installed in an individual statute, such as Article 4 subparagraph 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Interest Projects. However, since the installation entity is a private person (private person) and the purpose of its establishment is for private interest, it cannot be deemed that the public interest is uniformly denied, contrary to the Defendant’s assertion.

It does not necessarily be readily concluded that only private interest is intended (a facility more than a certain size is installed as an urban planning facility under subparagraph 9 of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act, and its purpose of establishment cannot be deemed to be for the pursuit of private interest, on the ground that it requires installation as an urban planning facility).

Therefore, it is reasonable to see that the solvents storage facility that the plaintiff intends to install falls under subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act.

(2) Whether the instant disposition is legitimate within the discretionary scope

As seen earlier, solvents storage facilities which the Plaintiff intended to install fall under subparagraph 9 (h) of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act, and thus, even though the requirements for permission have been met under the Act and subordinate statutes governing development restriction zones, in order to be legitimate, the disposition of this case constitutes a discretionary act, and it shall be recognized that the disposition of this case does not deviate or abuse in the exercise of its discretion.

On the other hand, Article 11(1) of the Development Restriction Zone Act provides that the act of installation, etc. of a structure within a development restriction zone shall be prohibited in principle, and exceptionally permitted when exceptionally permitted while being prohibited. However, as such, the act is prohibited in principle by the law, and the act is uniformly prohibited by the law, and the act constitutes a "Exceptional Permission" in the lecture, so it cannot be readily concluded that it constitutes a discretionary act, since it is a beneficial act. Whether it constitutes a discretionary act is determined by a combined consideration of the legal interests to be protected by the law in question, the detailed criteria for cases where permission is permitted, the legal form of the law on the permission of the administrative agency in the event that the requirements are met, etc.

However, according to the proviso of Article 11(1) of the Development Restriction Zone Act, a person who intends to conduct an act may do so with permission, and the provisions of each subparagraph of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act stipulating the scope of the types of structures, etc. subject to permission, etc., such as structures, etc., are not merely for public interest, and it appears that the provisions of the above attached Table are for private interest (e.g., houses under subparagraph 3, and neighborhood living facilities under subparagraph 4). In light of the purport of the above Acts and subordinate statutes, even if there is room for discretion within a certain scope under each subparagraph of attached Table 1 of the Enforcement Decree of the Development Restriction Zone Act, it is reasonable to deem that the above attached Table only for public interest, and that it is for private interest, even if there is a provision for the purpose of private interest. In light of the purport of the above Acts and subordinate statutes, if it satisfies the requirements of each subparagraph of the attached Table 1 of the Development Restriction Zone Act, the administrative agency may refuse to grant permission for domestic affairs, on the ground of discretion.

Even if it is recognized, the scope of discretion should be limited to specific and probable hazard factors to the extent that the purpose of designating the development restriction zone station is unlimited in light of the purpose of the development restriction zone law.

Therefore, the Defendant’s assertion that the instant disposition, which rejected the Plaintiff’s application, is legitimate for an abstract reason, such as the fact that the instant disposition was not subject to discretion (free) without permission for the same kind of act, is difficult to accept, on the premise of the fact that it was a discretionary act. Ultimately, the instant disposition is not within the discretionary act or within the scope of discretion, and is recognized as a deviation or abuse of the discretionary authority.

As such, it is ultimately illegal.

3. Conclusion

Then, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

Judges

Judges Lee Young-young

Judges double assistant instructors

Judge Park Sung-sung

Site of separate sheet

Related Acts and subordinate statutes

Petroleum and Petroleum Substitute Fuel Business Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "petroleum" means crude oil, natural gas (including liquefied natural gas; hereinafter the same shall apply) and petroleum products;

2. The term "petroleum products" means gasoline, light oil, light oil, heavy oil, lub oil, hydrocarbon oil equivalent thereto and petroleum gas (including liquefied petroleum gas; hereinafter the same shall apply), which fall under any of the following items:

(a) hydrocarbon oil: Aviation-sharing, solvents, asphalt, naphtha base oil (including crude oil; hereinafter the same shall apply), petroleum intermediate products (referring to crude oil), and secondary fuel oil;

Special Measures for Designation and Management of Development Restriction Zones

The purpose of this Act is to prescribe matters necessary for the designation of development-restricted areas under Article 38 of the National Land Planning and Utilization Act, restriction on activities in development-restricted areas, support for residents, purchase of land, and efficient management of development-restricted areas, thereby preventing urban disorderly dissemination and securing the healthy living environment for citizens through the conservation of the natural environment surrounding cities.

Article 11 (Restriction on Acts in Development Restriction Zones)

(1) No person shall construct a building, change the purpose of use, install a structure, change the form and quality of land, cut bamboo and trees, divide land, stockpile articles, or implement an urban planning project under subparagraph 11 of Article 2 of the National Land Planning and Utilization Act (hereinafter referred to as the "urban planning project") in a development-restricted zone: Provided, That a person who performs an act falling under any of the following subparagraphs may perform such act with permission from the head of a Si/Gun/Gu:

1. Construction of buildings or installation of installations which fall under any of the following items and are prescribed by the Presidential Decree, and the resulting alteration of the form and quality of lands:

(h) Public interest facilities, such as schools, waste disposal facilities, and electricity supply facilities;

Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones

Article 13 (Types, etc. of Buildings or Structures Subject to Permission)

(1) The kind of building or structure as provided in Article 11 (1) 1 of the Act, and the scope of building or installation, shall be as provided in the attached Table 1.

[Attachment 1] Kind of buildings or structures and scope of construction or installation (related to Article 13(1))

(b)

A person shall be appointed.

(c)

(d).

(e)

(f)

(g).

(h).

(i)

(j)

(k)

(l)

(m)

(n)

(o)

(p)

A person shall be appointed.

National Land Planning and Utilization Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

6. The term “infrastructure” means the facilities falling under each of the following items, which are prescribed by the Presidential Decree:

(c) Distribution and supply facilities, including distribution business facilities, waterworks, electricity, gas supply facilities, broadcasting and communications facilities, and utility tunnels;

Enforcement Decree of the National Land Planning and Utilization Act

Article 2 (Infrastructures)

(1) The term "facilities prescribed by Presidential Decree" in the part other than the items of subparagraph 6 of Article 2 of the National Land Planning and Utilization Act (hereinafter referred to as the "Act") means the facilities falling under each of the following subparagraphs (including the substitute facilities and convenience facilities necessary for the display of functions and utilization of the relevant facilities):

3. Distribution and supply facilities: Distribution business facilities, water, electricity, gas and heat supply facilities, broadcasting and communications facilities, utility tunnels, markets, oil storage and oil supply facilities;

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