Seoul High Court Decision 200Na14488 delivered on August 1, 200

Human Head of a Gun (Attorney Cho Jae-soo et al., Counsel for defendant-appellant)

August 13, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On August 3, 2018, the defendant revoked the provisional disposition for non-approval of the small and medium enterprise start-up business plan against the plaintiff.

1. Details of the disposition;

A. On April 12, 2018, the Plaintiff filed a request with the Defendant for an advance ruling on the application for the establishment of a new factory (hereinafter “instant factory”) in order to establish a ready-mixed factory (hereinafter “instant site”).

B. On April 25, 2018, the Defendant notified the Plaintiff of the result of the preliminary examination containing the following:

As a result of the examination of the table-related provisions contained in the main text, it is possible to permit development activities if they meet the standards under Article 58 (1) 4 of the Act as projects subject to deliberation. - Article 58 (1) 4: A project subject to deliberation by the Urban Planning and Utilization Act (hereinafter referred to as the “National Land Planning Act”) - An Urban Planning Committee (a week 1) / Gun Planning Committee; hereinafter the same shall apply) - Pursuant to the standards under Article 58 (1) 4 of the Act;

Notes 1 to the Gun Planning Committee

C. On June 18, 2018, the Plaintiff filed an application with the Defendant for approval of a business plan under Article 33 of the Support for Small and Medium Enterprise Establishment Act (hereinafter “instant application”).

D. On June 26, 2018, the chief of the person-general civil petition office in charge of the receipt of the instant application requested the head of the Incheon-gun Urban Development Division to deliberate on the permission for development activities deemed necessary under Article 35(1) of the Small and Medium Enterprise Establishment Act in the event of acceptance of the said application.

E. On July 11, 2018, the Defendant issued a notice on the extension of the civil petition treatment period to the Plaintiff on the following grounds:

The initial processing period of table ○○ original processing period included in the main sentence: The scheduled date of the completion of processing on July 13, 2018: The extension of the civil petition processing period due to the holding of the National Land Planning and Utilization Act by the National Land Planning Committee under the Act on the grounds for the extension of the processing period on August 10, 2018, when approving a business start-up project plan under Article 35 of the Act on the grounds for the extension of the processing period, the consultation with the relevant agency as to the constructive permission, etc. shall be completed. In relation to the permission for development activities under Article 56 (1) of the National Land Planning and Utilization Act among the deemed matters, the Committee shall hold an urban planning committee under Article 59 of the National Land Planning and Utilization Act, and it is possible to approve the business start-up project plan after obtaining permission for development activities according to the deliberation by the Urban Planning Committee. Accordingly, the holding of the Urban Planning Committee is scheduled on July 24, 2018.

F. On July 24, 2018, the Gun Planning Committee passed a resolution as to the instant application as “non-determination”.

G. On August 3, 2018, the Defendant issued a non-approval disposition on the instant application for the following reasons (hereinafter “instant disposition”).

A neighboring site (the site of this case) where a consultation on development activities for the installation of a ○○ ready-mixed production facility located within the main text is requested to be held by the Gun Planning Committee because a natural village is naturally formed, thereby impairing the residential environment of local residents, such as noise and dust due to the operation of heavy equipment, etc. to the above site, and impairing natural landscape and village landscape, it is rejected by the deliberation of the Gun Planning Committee.

H. On October 31, 2018, the Plaintiff filed an administrative appeal seeking the revocation of the instant disposition with the Gangwon-do Administrative Appeals Commission, but the said commission dismissed the Plaintiff’s claim on January 21, 2019.

【Fact-finding without dispute over the ground for recognition】: Gap's 1 through 5, 11, Eul's 1 through 6, the purport of the whole pleadings

2. The plaintiff's assertion

A. According to Article 33(3) of the Small and Medium Enterprise Establishment Act, if the approval of a business plan is not notified within 20 days from the filing date of the application for approval of the business plan, the approval of the business plan shall be deemed to have been granted on the day following the 20th anniversary of the filing date of the application. However, since the Defendant did not notify the Plaintiff as to whether to approve within 20 days from the filing date of the application, the approval of the business plan

B. The Gun Planning Committee decided to reject the instant application on the grounds of concerns over noise, dust, natural landscape, and village aesthetic view, and the Defendant rendered the instant disposition on the grounds of the aforementioned review results. However, the Plaintiff satisfied all the requirements required by the relevant laws and regulations, such as the Clean Air Conservation Act, and completed various reports on the emission of air, noise, vibration, dust dust, and waste water. The approval of a business plan under Article 33 of the Small and Medium Enterprise Establishment Act constitutes a chilling act, i.e., a binding act, and an administrative agency must grant approval of a business plan insofar as the requirements under the law are satisfied. Nevertheless, the Defendant’s rejection of the instant application on the grounds of the above abstract cause is unlawful as

C. In light of the location of the instant site, the degree of view in the surrounding area, the equity with other ready-mixed factories established according to the Defendant’s approval, and the fact that people actually reside in the surrounding area of the instant site is merely about 10 bonds, the Plaintiff has already formulated and submitted a damage prevention plan, and the Plaintiff has suffered significant disadvantages due to the instant disposition, etc., the instant disposition was abused or abused against the principle of proportionality and the principle of equality.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Determination as to the assertion that approval of a project plan is constructive

1) Article 33(1) of the Small and Medium Enterprise Establishment Act provides that "a founder who intends to engage in a manufacturing business may engage in a business after preparing a business plan as prescribed by Presidential Decree and obtaining approval from the head of a Si/Gun/Gu therefor." Article 33(3) of the same Act provides that "the head of a Si/Gun/Gu shall notify whether he/she grants approval within 20 days from the date of receipt of an application for approval of a business plan under paragraph (1). In such cases, if he/she fails to notify within 20 days of approval, he/she shall be deemed to have obtained approval on the date following the 20th anniversary of the date of receipt of the application for approval." In addition, Article 35(1) of the same Act provides that "the following permission, authorization, license, approval, designation, decision, cancellation or abolition of a business plan is deemed to have been approved with the head of another administrative agency pursuant to Article 33(1) of the same Act." Article 35(3) of the same Act provides that "The head of a Si/Gun/Gu shall be deemed as one of permission for development activities under the National Land Planning Act.

Meanwhile, the above application for approval falls under “legal civil petition” as prescribed by Article 2 subparag. 1(a)(1)1 of the Civil Petitions Treatment Act (hereinafter “Civil Petitions Treatment Act”). The Civil Petitions Treatment Act is a general law on the treatment of civil petitions, and except as otherwise provided in other Acts, it is necessary to treat civil petitions as prescribed by the above Act. However, with respect to the calculation of the treatment period of civil petitions, Article 19(2) of the Civil Petitions Treatment Act provides that “where the treatment period of civil petitions is determined at least six days, it shall be calculated on a daily basis and shall be included in the first day, but shall not be included in the holidays and Saturdays.” In addition, Article 21(1) of the Enforcement Decree of the Civil Petitions Treatment Act provides that “Where the head of an administrative agency deems it difficult to treat civil petitions within the treatment period due to unavoidable reasons, he/she may extend the treatment period once within the scope of the treatment period of the civil petition with consent of the civil petitioner.”

2) In full view of the foregoing provisions and the facts acknowledged in the preceding part of the “1. Circumstances of dispositions”, we examine the instant case.

A) On June 18, 2018, the Plaintiff filed the instant application on June 18, 2018. Therefore, if a period is calculated excluding Saturdays and holidays pursuant to Article 19(2) of the Civil Petitions Treatment Act, the last day of the period for treating civil petitions pertaining to the said application shall be no longer than July 13, 2018. This is the same as the Defendant expressed to the Plaintiff by “Notice of Extension of the period for treating civil petitions” on July 11, 2018.

B) On June 26, 2018, the chief of the Human-Military Integrated Civil Service Division requested the head of the Human-Military Urban Development Division and the head of the Urban Planning Committee deemed necessary for permission to engage in development activities pursuant to Article 35(1) of the Small and Medium Enterprise Establishment Act. However, as the deliberation of the Urban Planning Committee is anticipated to be unable to be completed within the civil petition processing period, the Defendant issued a notice of the extension of the civil petition processing period to the Plaintiff on July 11, 2018, and specifically indicated the reasons why the civil petition was not treated within the initial processing period and the extended processing period ( August 10, 2018). Article 21 of the Enforcement Decree of the Civil Service Act provides that “Where it is deemed difficult to treat the civil petition within the processing period due to unavoidable reasons, the processing period may be extended once within the scope of the civil petition processing period.” In light of the above reasons and circumstances, the Defendant’s extension of the processing period is determined to comply with the above provisions under the Enforcement Decree of the Civil Service Act.

C) As the period for handling a civil petition was extended as in the foregoing paragraph (b), the period for handling the instant petition was extended by August 10, 2018 (20 days excluding Saturdays and holidays, July 16, 2018). However, as the Defendant issued the instant disposition on August 3, 2018, the extended period, the Defendant, as it was within the extended period, is not deemed to have approved the Defendant’s business plan in accordance with the latter part of Article 33(3) of the Small and Medium Enterprise Establishment Act.

3) Therefore, the Plaintiff’s assertion on this part is without merit.

B. Judgment on the assertion that there is no legal basis

1) The approval or revised approval of a business plan for the establishment of a small and medium enterprise under Article 33(1) of the Small and Medium Enterprise Establishment Act is a so-called beneficial administrative disposition that entails the effect that the other party grants rights or interests to the other party, and the requirements of administrative disposition are not prescribed in the law, and it is subject to the discretionary action of an administrative agency (see Supreme Court Decision 94Nu1289 delivered on June 24, 199

2) As seen earlier, Article 35(1) of the Small and Medium Enterprise Establishment Act provides, “When approving a business plan pursuant to Article 33(1) of the same Act, matters on which the head of a Si/Gun/Gu has consulted with the head of other administrative agency pursuant to Article 33(4) regarding the following permission, authorization, license, approval, designation, decision, report, cancellation or disuse shall be deemed to have been granted, and Article 55(1) of the National Land Planning and Utilization Act provides, “The permission for development activities pursuant to Article 56(1) of the National Land Planning and Utilization Act shall be deemed to have been granted.” As such, Article 35(1) of the same Act provides, “Where permission for development activities is deemed granted pursuant to the same Article, the nature of the permission for establishment of a small and medium enterprise shall be also subject to the nature of the permission for development activities. However, since the requirements for permission for development activities and prohibition under the National Land Planning Act are too small and conclusive, it constitutes a “ discretionary act” belonging to the administrative agency’s discretionary judgment.

3) As seen above, approval of the business plan applied by the Plaintiff constitutes an act of discretionary discretion in any mother. Therefore, even if the Plaintiff filed the instant application by meeting all the formal requirements, such as implementing various procedures for filing a report under the relevant statutes, the Defendant may refuse the said application by comprehensively assessing the public and private interests related to the construction of the instant factory.

4) Therefore, this part of the Plaintiff’s assertion is without merit on the premise that the approval of the project plan of this case constitutes “speed”.

C. Determination on the assertion of deviation or abuse of discretionary power

1) In full view of the provisions of Articles 56(1) and 58 of the National Land Planning and Utilization Act, and Article 56(1) [Attachment Table 1-2] [Attachment Table 1-2] of the Enforcement Decree of the same Act, permission for the development of buildings, etc. that involve changing the form and quality of land is provided for in the permission criteria and prohibition requirements as an indefinite concept, and thus, an administrative agency is granted discretionary authority. Judicial review of such discretionary act is, in principle, subject to whether there is deviation or abuse of discretionary authority, taking into account the possibility of discretion for public interest judgment of the administrative agency. The criteria for determination are whether there is deviation or abuse of discretionary authority. In such a case, the person disputing the validity of administrative act should assert and prove it (see, e.g., Supreme Court Decisions 2004Du6181, Jul. 14, 2005; 2017Du4896, Oct. 12, 2017).

In particular, when examining whether there is deviation or abuse of discretionary power with regard to permission of the administration for development activities that are likely to cause environmental damage, contamination, or disaster, it shall be determined with careful consideration by comprehensively taking into account various regulations on the balance of rights and interests and the protection of environmental rights among interested parties who have conflicting interests with the specific regional situation, such as the actual use of land by residents in the relevant region and the living environment. The administrative agency’s discretionary decision on the requirements for prediction of the current uncertain situation and ripple effect, such as concerns over environmental pollution and disaster occurrence, should be widely respected unless there are circumstances such as where the content of the decision is considerably lacking rationality or where it is clearly contrary to the principle of equity or proportionality when compared with other interests and values (see, e.g., Supreme Court Decision 2016Du5490, Mar. 15, 2017).

2) In light of the above legal principles, comprehensively taking account of the following facts and circumstances revealed by the respective descriptions and images of evidence Nos. 3 through 5, 19, 23, Eul’s evidence Nos. 3, 7 through 14, 16, and 18, and the entire purport of oral pleadings, the instant disposition is made according to the defendant’s arbitrary judgment and cannot be deemed to constitute a deviation or abuse of discretionary power. Accordingly, the Plaintiff’s assertion contrary thereto is without merit.

A) Article 58(1)4 of the National Land Planning and Utilization Act requires, as a requirement for permission for development activities, that “the actual conditions of land use in surrounding areas or land use planning, height of buildings, gradient of land, status of trees, water drainage, water drainage, river, lake and marsh, drainage of wetlands, etc.” (Article 1-2) d) of the Enforcement Decree of the National Land Planning and Utilization Act requires that “the buildings or structures constructed or installed as development activities do not damage the surrounding natural scenery and fine view, and the height, form and color thereof shall be in harmony with the surrounding buildings,” and “the relevant area and its surrounding areas shall not cause any risk of environmental pollution, water pollution, soil pollution, noise, vibration, dust, dust, etc. due to the development activities” (Article 58(1)4) of the Enforcement Decree of the National Land Planning and Utilization Act shall be granted discretion to the Defendant to determine whether the instant application constitutes the above cases.

B) Also, the instant application falls under a planned management area. According to Article 6 subparag. 23, Article 36(1)2(c) of the National Land Planning and Utilization Act and Article 36(2)2(b) of the Enforcement Decree of the same Act [Attachment 1-2], a planned management area is “area expected to be integrated into an urban area or intended for limited utilization and development in consideration of the natural environment” and “area requiring planned and systematic management.” In granting permission for development activities to the said area, the development impact on the environment, the protection and creation of landscapes, and the minimization of fine view damage should be considered.

C) There are a large number of people around the site of this case, and most adjacent land are being used as farmland. However, if the factory of this case was established on the site of this case, considerable amount of dust, smoke, noise, vibration, etc. due to the operation of the factory, movement of large ready-mixed vehicles, etc., which will continue to exist during the operation of the factory, and the living environment of neighboring residents will worsen and the natural landscape and village management will be damaged. In this regard, although the Plaintiff submitted the “damage Prevention Plan”, the contents are limited to some kinds of damage, such as dust, etc., and the structure of the contents are reduced, it is difficult to view that sufficient damage prevention measures have been taken solely with the above plan.

D) From the time the Plaintiff requested a prior examination of the application for the approval of new factory establishment prior to the filing of the instant application, the Defendant sufficiently informed the Plaintiff that: (a) the requirements of Article 58(1)4 of the National Land Planning and Utilization Act should be met; (b) the land use condition of surrounding areas or land use plan; (c) the height of buildings; gradient of land; water flow; water flow; and (d) drainage of water; and (b) it should undergo deliberation by the Gun Planning Committee in relation to the said requirements; (c) there are multiple houses in neighboring areas of the instant site; and (d) there is a group of civil petitions on the grounds of environmental damage, etc.; (d) the Defendant appears to have given adequate prior consideration prior to the instant application for the approval of the project plan to give predictability to the legal issues that may arise in the course of the approval of the project plan.

E) Once problems, such as environmental and landscape damage, occur and aftermath, it is practically impossible to return to a previous state due to ex post regulation, and such circumstances should be fully taken into account from the stage of permission for development activities. In addition to the above circumstances, the Plaintiff’s private interest infringed by the instant disposition is larger than that of the public interest to be achieved through the instant disposition.

F) Although the Plaintiff is taking a matter of equity with other ready-mixed factories approved by the Defendant, the evidence alone submitted by the Plaintiff is not sufficient to recognize that the location conditions of the instant ready-mixed factories are similar to those of the instant factories, or that the instant factories are more favorable than those of the instant factories, and there is no other evidence to acknowledge this differently. Therefore, the instant disposition cannot be deemed to violate the

5. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

(attached Form omitted)

Judges Sung Ho-ho (Presiding Judge)

Note 1) means the Urban or Gun Planning Committee all; hereinafter the same shall apply.