Military Livestock Industry Cooperatives (Attorney Park So-young, Counsel for defendant-appellant)

Guns of the Armed Forces

Defendant 1 and four others

May 24, 2013

Daegu District Court Decision 2012Guhap2032 Decided December 12, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s provisional disposition of denial of construction against the Plaintiff on April 26, 2012 is revoked.

3. The part arising between the Plaintiff and the Defendant out of the total litigation cost is assessed against the Defendant, and the part arising from the supplementary participation is assessed against the Intervenor joining the Defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On March 26, 2012, the Plaintiff filed an application for a construction permit (hereinafter “instant application”) with a site area of 29,132 square meters, building area of 8,147.17 square meters, total floor area of 7,420 square meters (a stable, compost, warehouse, warehouse, and educational and research facility (hereinafter collectively referred to as “the instant stable”) as complex civil petitions for the purpose of raising cattle (150Du 150, 2012, 300Du 500, 2013, and 502) to the Defendant, with the intention of raising cattle (hereinafter collectively referred to as “instant site”).

B. On April 26, 2012, the Defendant issued a disposition of non-permission to construct the instant livestock shed (hereinafter “instant disposition”) on the ground that “The instant application constitutes a restricted area for livestock breeding as prescribed by Article 8(1) of the Act on the Management and Use of Livestock Excreta, Article 3 of the Ordinance on the Restriction on Livestock Raising of Military Armed Forces (hereinafter “instant Ordinance”), and the designation of a restricted area for livestock breeding as prescribed by the public notice of designation of a restricted area for livestock breeding of military forces.”

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 7-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the invalidity of the designation of a restricted area for raising military livestock;

According to Article 8(1) of the Act on the Management and Use of Livestock Excreta (hereinafter “livestock Excreta Management Act”), the head of a Si/Gun/Gu may restrict livestock raising in an area where it is deemed necessary to restrict livestock raising among the water-source protection areas under Article 7 of the Water Supply and Waterworks Installation Act, water-source protection areas under Article 22 of the Framework Act on Environmental Policy, special measures areas under Article 22 of the Framework Act on Environmental Policy, and other areas where water quality preservation is necessary to be located in an area exceeding the environmental standards under Article 10 of the Framework Act on Environmental Policy (subparagraph 2), as prescribed by municipal ordinances of the relevant local government. However, the designation of livestock-raising restricted areas under Article 4 of the Public Notice of Designation of Livestock-Raising Restricted Areas (hereinafter “Public Notice”), which was enacted with the authority delegated by the Livestock Excreta Management Act, is unlawful as it does not constitute a violation of Article 8(1)3 of the Act on the Management of Livestock Excreta within the scope of 10 meters from the boundary of each of the instant buildings (hereinafter “local livestock excreta disposal areas”).

Do Governor's argument in violation of the principle of protection of trust

On December 23, 2010, the Defendant issued a certificate of farmland acquisition to newly build a “Military Livestock Industry Research Center” on the ground of the instant application site by the Gyeonggi-do Governor on December 23, 2010, and the Defendant also selected the Plaintiff as “persons eligible for support for the production and non-development of high-quality plant in 2011” around June 201, etc., the Defendant expressed a public view that the Plaintiff may build livestock pens to raise litigation on the ground of the instant application site, and the Plaintiff trusted the name of its public opinion and filed the instant application. Nevertheless, the instant disposition against the Plaintiff’s trust is unlawful as it violates the principle of trust protection.

【Disorder and Abuse of Discretionary Authority】

On July 2, 1994, the Defendant issued a public notice of determination of a road zone as to the Gun roads adjacent to the instant application site. However, the above public notice does not contain and publicly notify a topographical map indicating the area, district, etc. (hereinafter “regional map, etc.”) on which the area is indicated in accordance with Article 8(2) of the Framework Act on the Regulation of Land Use and Article 4(2) of the Addenda of the Act (No. 715, Dec. 7, 2005) and Article 4(2) of the Addenda of the Act. Thus, the Plaintiff’s lawsuit seeking to raise constitutes “livestock raising or mooring in a public institution or its affiliated institution for experiment and research purposes” under the proviso to Article 2 of the Ordinance of this case and subparagraph 4 of Article 2 of the Enforcement Rule of the Ordinance on the Restriction of Livestock Raising, which exceptionally allows raising, and the Defendant’s disposition of this case contains no opinion on whether the head of livestock raising is likely to cause harm to the health and sanitation of neighboring residents, etc.

(b) Related statutes;

Attached Table 1 is as stated in the relevant Acts and subordinate statutes.

C. Determination on the invalidity of the instant notice

(1) According to Article 11(5)3 of the Building Act, where a building permit is granted, permission for development activities under Article 56 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) is deemed granted. According to Article 58(1) of the National Land Planning and Utilization Act, the head of a Gun is required to meet the scale of development activities prescribed by Presidential Decree in consideration of the characteristics of each specific-use area (Article 1(1)1), ② not to violate the contents of an urban/Gun management plan (Article 2), ③ not to interfere with the implementation of an urban/Gun planning project (Article 11(5)3), ④ to be in harmony with the actual use condition or land use plan of the surrounding area, ④ to be in harmony with the surrounding environment or landscape, such as the height of buildings, gradient and trees of land, water drainage, and drainage of river, lake and marsh, etc. (Article 4); ⑤ to install infrastructure following the relevant development activity, or to secure sites necessary therefor (Article 58(1)5). Thus, permission for development activities is granted to an administrative agency for development activities, 2000.

The head of a Si/Gun/Gu may restrict livestock raising in an area where it is deemed necessary to restrict livestock raising among the areas exceeding the environmental standards under Article 10 of the Framework Act on Environmental Policy (subparagraph 2), among the areas in need of the protection of the living environment in a residential densely-populated area (subparagraph 1), the water-source protection area under Article 7 of the Water Supply and Waterworks Installation Act, the special measures area under Article 22 of the Framework Act on Environmental Policy, other areas in need of the preservation of water quality corresponding thereto (subparagraph 2), and other areas (subparagraph 3) where the restriction on livestock raising is deemed necessary for the preservation of the living environment of local residents or the preservation of the quality of water sources.

However, the Ordinance of this case enacted with the delegation of Article 8 of the Livestock Excreta Management Act provides that livestock whose raising is restricted under Article 2 of the Livestock Excreta Management Act shall be livestock as provided for in Article 2 of the Livestock Excreta Management Act: Provided, That the same shall not apply to cases where the head of a Gun who does not fall under Articles 6 and 8 of the Enforcement Decree of the Livestock Excreta Management Act, such as pet, method, or facilities for experiment, etc., limits the raising of livestock under Article 3 (Scope of Breeding Restrictions). The head of a Gun shall first designate and publicly notify a specific area in which raising livestock is prohibited, and shall not raise livestock without the permission of the head of a Gun (paragraph (2)) in an area publicly notified pursuant to Article 3 of the Ordinance of this case. The defendant, on April 27, 2011, announced the designation and public announcement of a zone where raising livestock is restricted under Article 3 of the Ordinance of this case (No. 2011-10, hereinafter referred to as the “instant public announcement”).

In cases where a statute delegates a certain matter to a municipal ordinance, determination of whether the municipal ordinance complies with the limits of delegation shall also be made by comprehensively examining the legislative purpose and contents of the relevant statutory provision, structure of the provision, relationship with other provisions, etc. In addition, whether the delegation provision itself clearly states the limits of delegation by using terms with which the meaning can be accurately known, or whether the delegation provision itself exceeds the limits of its literal meaning, or whether it has a new legislation beyond the bounds of its literal meaning by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the terms used in the delegation provision (see Supreme Court Decision 2011Du10355, Oct. 25, 2012, etc.).

Article 8(1) of the Livestock Excreta Management Act provides that the head of a Si/Gun/Gu may restrict the raising of livestock in accordance with the ordinances of the relevant local government in an area in need of the protection of the living environment in a residential congested area. In full view of the legislative intent, the details of the provisions, the regulatory system, etc. of Article 8(1) of the Livestock Excreta Management Act, the scope of the livestock whose raising is restricted, the concept of the area and facilities where the raising of livestock is restricted, the standards for designation, including the type of the area and facilities where the raising of livestock is restricted, the standards for designation of the area and facilities where the raising of livestock is restricted, the area and facilities where the raising of livestock is restricted, and the separation distance between the livestock shed and the area and facilities where the raising of

However, unlike Article 8(1) of the Livestock Excreta Management Act, which is a delegation provision, only the scope of livestock where livestock raising is restricted in an area where it is deemed necessary to restrict livestock raising (Article 2), and the head of a Gun shall designate and publicly notify a certain area where livestock raising is prohibited in advance (Article 3(1)), and the head of a Gun shall designate and publicly notify in advance a certain area where livestock raising is prohibited (Article 3(1)), and only a comprehensive authorization provision exists to allow the head of a Gun to designate at his own discretion without specifying the detailed and detailed contents, such as the concept of area and facilities, area and facility, the type of facilities where livestock raising is restricted, and the distance between the area and facilities where livestock raising is restricted, and the distance between livestock pens. Thus, Article 3(1) of the Ordinance of this case shall be null and void as it goes against the principle of prohibition of comprehensive delegation under the Constitution by allowing the head of a Gun to designate matters to be prescribed in the Ordinance beyond the limit delegated by Article 8(1) of the High Livestock Excreta Management Act.

As seen earlier, a building permit that entails permission for development activities, etc. is a discretionary act, and even if the Defendant did not impose any restriction on construction permission under the Building Act, where there is any damage to the neighboring residents’ residential environment, living environment, water quality, and atmosphere or any serious public interest needs to be prohibited because it is not in harmony with the surrounding environment and landscape, the construction permission of the instant stable cannot be denied on the ground of Article 4 subparag. 3 of the Notice that the Defendant is null and void.

x) The instant disposition made by the Defendant is unlawful without having to examine the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted due to its reasons, and since the judgment of the court of first instance is unfair with different conclusions, it shall be revoked by accepting the plaintiff's appeal, and it shall be so decided as per Disposition by accepting the plaintiff's claim of this case seeking the revocation of the disposition of

[Attachment Omission of Related Acts]

Judges Lee Jae-dae (Presiding Judge)