[1] In a case where a cargo terminal business which obtained a license under the former Goods Distribution Promotion Act is recognized as a private capital inducement project under the former Act on the Promotion of Private Capital into Social Overhead Capital (affirmative)

[2] Whether a disposition is null and void in a case where an administrative agency grants a new project operator approval without a new project operator’s designation procedure (negative)

[3] The case holding that it cannot be deemed null and void since it cannot be deemed that there is a serious and obvious defect in the "approval for an implementation plan and a disposition for an amendment to the construction work" made by the administrative agency without undergoing a traffic impact assessment in advance by attaching "a certificate for deliberation of traffic impact assessment is issued before building permission"

[1] Articles 38 and 18 of the former Goods Distribution Promotion Act (amended by Act No. 5801 of Feb. 5, 1999) recognize the transfer of the business and the succession of the status of the cargo terminal operator. In light of the fact that the former Act on the Promotion of Private Capital to Social Overhead Capital (amended by Act No. 5624 of Dec. 31, 1998) does not have any express provision prohibiting the transfer of the business by the project operator, it is reasonable to deem that the transfer of the business and the transfer of the status of the project operator can be made even in cases where the cargo terminal business licensed under the former Goods Distribution Promotion Act is implemented after being recognized as a private capital inducement project under the former Act on the Promotion of Private Capital to Social Overhead Capital.

[2] Article 13(5) of the former Act on Public-Private Partnerships in Infrastructure (amended by Act No. 7386 of Jan. 27, 2005) and Article 15 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18736 of Mar. 8, 2005) provide that "any person designated as a project operator shall apply for approval of an implementation plan within one year from the date of designation, and if he/she fails to apply for approval of an implementation plan within this period, the designation as a project operator becomes void." Furthermore, Article 46 subparag. 3 of the same Act does not provide for any provision on whether the designation of a project operator becomes void if the approval of an implementation plan becomes void due to a project operator's failure to start construction within the project period or delay or avoid construction works within the project period without justifiable grounds, and thus, it is difficult to view that a new project operator becomes void or becomes void due to the lack of a new project operator's designation procedure. Thus, it is difficult to deem that the new project operator becomes void.

[3] The case holding that since the traffic impact assessment differs from the environmental impact assessment, its purport and contents, the scope of the target project, whether the procedure for collecting residents' opinions is omitted, and thereafter the traffic impact assessment is replaced by the traffic impact analysis and improvement plan, the administrative agency, not by the traffic impact assessment but by the traffic impact assessment but by the implementation plan modification and the approval for the change of the construction work, it is difficult to view that the above disposition is null and void because the administrative agency attached the above additional clauses without prior traffic impact assessment, and it cannot be deemed that there are significant and apparent defects in the above disposition

[1] Article 18 of the former Goods Distribution Promotion Act (amended by Act No. 5801 of Feb. 5, 199), Article 38 of the Framework Act on Logistics Policies (see current Article 45 of the Framework Act on Logistics Policies) / [2] Articles 13 (5) and 15 of the former Act on Public-Private Partnerships in Infrastructure (amended by Act No. 7386 of Jan. 27, 2005), Article 15 of the former Enforcement Decree of the Act on Public-Private Partnerships in Infrastructure (amended by Presidential Decree No. 18736 of Mar. 8, 2005) / [3] Article 15 of the former Enforcement Decree of the Environmental Impact Assessment Act (amended by Act No. 7386 of Jan. 27, 2005); Article 20 of the former Enforcement Decree of the Environmental Impact Assessment Act (see current Article 19 of the Environmental Impact Assessment Act) / [3] Article 15 of the former Enforcement Decree of the Environmental Impact Assessment Act (amended by Act No. 285 of the current Act)

Plaintiff 1 and eight others (Law Firm Han-soo et al., Counsel for the plaintiff-appellant)

port of destination

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Seoul High Court Decision 2008Nu7818 decided November 19, 2008

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by the Plaintiffs are dismissed.

1. Judgment on the plaintiffs' grounds of appeal

Article 38 and Article 18 of the former Goods Distribution Promotion Act (amended by Act No. 5801 of Feb. 5, 1999) recognize the transfer of business to and succession to the status of the cargo terminal operator. In light of the fact that the former Promotion Act for the Inducement of Private Capital (amended by Act No. 5624 of Dec. 31, 1998) does not have any express provision prohibiting the transfer of business to a project operator, it is reasonable to deem that the transfer of business and the transfer of the status of the project operator may be possible even if the cargo terminal business licensed under the former Goods Distribution Promotion Act is carried out after being recognized as a private capital inducement project under the former Private Capital Inducement Act.

In the same purport, the court below is just in rejecting the plaintiffs' claim seeking the confirmation of invalidity of the approval of the first implementation plan of this case and the disposition of approving construction work (hereinafter "the first disposition of this case") on the premise that the transfer of the project operator status of this case is impossible, and it did not err by misapprehending the legal principles as to the transfer of the project operator status

In addition, in light of the reasoning of the judgment below and the record, it can be seen that the plaintiffs' claim and the cause of claim are merely seeking confirmation that the first disposition of this case is null and void from the beginning on the premise that transfer of the project operator status of this case is impossible, and they do not seek confirmation as to the invalidation of the last disposition.

In the same purport, the lower court is justifiable to have rejected the Plaintiffs’ claim seeking confirmation of nullity from the beginning. In so doing, the lower court did not err by misapprehending the legal doctrine on the litigation seeking confirmation of nullity.

2. Judgment on the Defendant’s grounds of appeal

A. Regarding ground of appeal No. 1

The Defendant asserts that the approval of the second implementation plan and the approval of the alteration of the execution plan of this case (hereinafter “the second implementation plan of this case”) were invalidated on December 31, 2007, and that there was no benefit to seek confirmation of invalidity of the second implementation plan of this case since the new implementation plan alteration approval was made on December 27, 2007. However, according to the reasoning of the judgment below, the second implementation plan of this case was extended on December 27, 2007, which was immediately before the expiration of the project period, and therefore, the second implementation plan of this case was extended to two years on December 27, 2007. Thus, the ground of appeal on this part is without merit.

B. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below held that the first disposition of this case was invalidated due to the lapse of the project implementation period of this case's first disposition by the defendant assistant intervenor (hereinafter "participating")'s purchase of only one parcel of land in the project site of this case or the failure to file an application for expropriation decision, and second disposition of this case is invalidated, and the second disposition of this case's second disposition is followed and then the approval of the implementation plan or the alteration of the execution period is made, which extends the execution period as determined by the approval of the execution plan of this case's second disposition, and then the approval of the execution plan or the alteration of the execution plan cannot be retroactively effective. However, if the approval of the implementation plan or the alteration of the execution plan satisfies the requirements as a new execution plan or the new execution approval, the first disposition of this case's first disposition becomes invalid due to the invalidation of the designation of the project operator of this case's second disposition of this case's execution plan's second disposition without the new execution procedure of this case's second disposition of this case's second disposition of this case's second disposition is invalid.

However, we cannot accept the above decision of the court below for the following reasons.

Article 13(5) of the former Act on Public-Private Partnerships in Infrastructure (amended by Act No. 7386 of Jan. 27, 2005) and Article 15 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18736 of Mar. 8, 2005) provide that "any person designated as a project operator shall apply for approval of an implementation plan within one year from the date of designation, and if he/she fails to apply for approval of an implementation plan within this period, the designation of the project operator becomes void." Furthermore, Article 46 subparag. 3 of the same Act does not provide for any provision on whether the designation of the project operator becomes void when an implementation plan becomes void due to the project operator's failure to commence construction works within the project period without justifiable grounds or delay or evasion of the implementation of the project after the commencement of the project, and thus, it is difficult for the project operator to separately cancel the designation of the implementation plan without any specific procedure. Thus, it is difficult for the project operator to view that the new project operator becomes void or lose its designation.

Nevertheless, the court below judged that the second disposition of this case, which did not go through a new project operator designation procedure, was null and void. Thus, the court below erred by misapprehending the legal principles on invalidation of administrative disposition, which affected the conclusion of the judgment.

C. Regarding ground of appeal No. 3

According to the provisions of Article 2, 4, and 6 of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (amended by Act No. 8852, Feb. 29, 2008; hereinafter referred to as the "former Act on Assessment of Impacts of Works") or the provisions of Article 2(3) [Attachment Table 1] and Articles 8 through 11 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19162, Dec. 1, 2005; 2. The scope of the business subject to assessment is determined to include the whole of the projects subject to assessment in traffic impact analysis and improvement measures for 10,000 square meters within the area of 20,000 square meters; 3. The scope of the project subject to assessment is to include the opinions of residents in the area where the project is to be affected by the implementation of the project under the former Act on Assessment of Impacts of Works on Environment, Traffic Impact, Etc. (hereinafter referred to as "resident traffic impact analysis and improvement measures"), and improvement measures.

As seen above, the traffic impact assessment has differences in its purport and contents, scope of the project subject to prior resident opinion gathering procedure, etc. and thereafter the traffic impact assessment is replaced by traffic impact analysis and improvement plan. Furthermore, as can be seen by the reasoning of the judgment below and the evidence duly admitted by the court below, the instant cargo terminal development project may not undergo the procedures for collecting residents' opinions as a project subject to deliberation by the local traffic impact assessment deliberation committee, which is a site area of 161,164 square meters; the Defendant did not exclude traffic impact assessment but did not exclude the traffic impact assessment; the Defendant made the secondary disposition of this case by using the "the certificate for deliberation on traffic impact assessment shall be issued before the building permit was building permit." Accordingly, the Defendant may have the participant reflect the contents of consultation with the head of approving agency on the traffic impact assessment until the building permit was completed in the project plan, etc. In light of the fact that there is room for dispute over interpretation because the legal principles on whether the project approval can be granted by attaching the above additional clauses on the traffic impact assessment project are not clearly revealed.

Nevertheless, the court below determined that the second disposition of this case was null and void on the ground that the intervenor did not undergo a traffic impact assessment in advance. The court below erred by misapprehending the legal principles on the invalidation of administrative disposition, which affected the conclusion of the judgment

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and all appeals by the Plaintiffs are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)