[1] The requirements to recognize standing to sue to seek the revocation, etc. of an administrative disposition, where the scope of the right of influence likely to be affected by the administrative disposition is specifically stipulated in the relevant laws, regulations, etc. on the ground of the administrative disposition, and the elements to recognize standing to sue to seek the revocation of

[2] The scope of standing to sue is presumed to be in fact likely to infringe or infringe on environmental interests under the relevant laws and regulations based on administrative disposition

[3] The procedure to determine whether to conduct advance consultation about the development project site under Article 7 [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy, in cases where no specific specific use area is designated under Article 36(1) of the former National Land Planning and Utilization Act

[4] The method to determine whether a defect is significant and apparent in a case where an administrative agency took an administrative disposition by erroneously interpreting the provisions of a law regarding a certain legal relationship or fact-finding

[5] The case holding that in case where the administrative agency rendered a disposition, such as approval, without going through a procedure to decide whether to conduct an advance consultation about the examination of environmental impact with respect to a development project site which has not been designated by other detailed specific use areas, which should be subject to advance consultation about environmental impact, such defect cannot be objectively apparent

[1] A third party who is not the direct counter-party to an administrative disposition and seeks confirmation of invalidity or cancellation on the ground that his environmental interest is infringed or is likely to be infringed on by the administrative disposition is entitled to standing to sue, i.e., to prove that his environmental interest is individually, directly, and specifically protected pursuant to the relevant administrative disposition-based laws and regulations or the relevant laws and regulations. However, in a case where the relevant laws and regulations or the relevant laws and regulations specifically stipulate the scope of the right to influence that the environmental interest is likely to be infringed on by the business, such as the act done by the administrative disposition, etc., it may be anticipated that the residents within the affected area will cause direct and significant environmental damage. Such environmental interest is the direct and specific interest that is individually protected by the individual, and it is acknowledged that the standing to sue is recognized as being infringed or infringed on the environmental interest because it is presumed that there is a concern of infringement or infringement on the environmental interest, and the residents outside the affected area should prove that there is a concern about infringement or infringement on the environmental interest exceeding the limit of tolerance in comparison with the above disposition.

[2] A person who is recognized as standing to sue is presumed to be an infringement or a risk of an environmental interest and is actually presumed to be infringed on the environmental interest includes not only residents in the affected area but also those who enjoy environmental benefits such as cultivating crops within the affected area. However, it does not include those who own buildings or land within the affected area or temporarily enjoy environmental benefits.

[3] In a case where a specific specific-use area under Article 36(1) of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 19497 of May 30, 2006) is not designated as a specific-use area under Article 36(1) of the former National Land Planning and Utilization Act (amended by Act No. 7297 of December 31, 2004), the head of the administrative agency concerned shall determine whether the development project site conforms to the definition of a specific-use area under Article 36(1) of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 19497 of May 30, 2006) through a specific investigation into the actual conditions and characteristics of the development project site, future land use direction, etc. and an evaluation work based thereon

[4] In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law and objectively. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be given to the specificity of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision to a certain legal relation or factual relations, the legal principles clearly stating that the provision of the law cannot be applied to such legal relations or factual relations, and thus, if an administrative agency has taken the disposition by applying the above provision, even though there is no room for dispute over the interpretation, it shall be deemed that the defect is significant and obvious. However, if there is a room for dispute over the interpretation because the legal principles that the provision of the law cannot be applied to such legal relations or factual relations clearly show, even if the administrative

[5] The case holding that in case where an administrative agency rendered a disposition, such as approval, without going through a procedure to decide whether to conduct advance consultations on the construction of a development project site which has not been designated by the other detailed specific use area due to erroneous interpretation of the law, such defects cannot be objectively apparent

[1] Articles 12 and 35 of the Administrative Litigation Act / [2] Articles 12 and 35 of the Administrative Litigation Act / [3] Article 25 (4) of the former Framework Act on Environmental Policy (amended by Act No. 7561 of May 31, 2005), Article 7 [Attachment 2] of the former Enforcement Decree of the Framework Act on Environmental Policy (amended by Presidential Decree No. 19497 of May 30, 2006) / [4] Article 19 of the Administrative Litigation Act / [5] Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 2006Du14001 decided Dec. 22, 2006 (Gong2007Sang, 238) / [4] Supreme Court Decision 2002Da68485 decided Oct. 15, 2004 (Gong2004, 1807)

Plaintiff 1 and 15 others (Law Firm Gyeong & Yang, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Governor of Jeju Special Self-Governing Province (Law Firm Square et al., Counsel for the defendant)

Gwangju High Court Decision 2008Nu586 decided January 8, 2009

All the judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Ground of appeal No. 1

Even if a third party who is not the direct counter-party to an administrative disposition is legally protected due to such administrative disposition, he/she shall be entitled to a decision of the legitimacy thereof by filing an administrative litigation seeking the cancellation or nullity of such disposition. Here, legal interests refer to cases where there are individual, direct, and specific interests protected by the relevant administrative disposition, and in cases where general, indirect, and abstract interests of the general public are generated as a result of the protection of public interests, no legally protected interests shall be deemed to exist. Accordingly, a third party who seeks the cancellation or nullity of environmental interests on the ground that his/her own environmental interests are infringed or are likely to be infringed upon by such administrative disposition shall be deemed to have standing to sue to prove that environmental interests are protected individually, directly, and specifically by the relevant administrative disposition or by the relevant laws and regulations, i.e., legal interests are to be protected by the law and regulations, and where the scope of rights which are expected to be infringed on by such administrative disposition or by the business activities, such as those conducted by the residents within the relevant administrative disposition shall be deemed to have been infringed on by the residents' rights to be directly, or actually protected by such environmental interests.

Examining the reasoning of the judgment below in light of the records, the court below's determination that the scope of the area subject to prior examination of the development project of this case is highly probable to be the surrounding area within 1 km through 1.2 km in the land of this case and the area adjacent to the development project of this case is reasonable. However, the plaintiff 16 did not reside within 1 km through 1.2 km in the land of this case and the area adjacent to the development project of this case because the residential area and the site of this case are permanent living within 326.4 km in the table between the residential area and the development project of this case and the site of this case. However, the plaintiff 16 appears to operate a burial ground near the site of this case (Evidence 83 of this case) and all other plaintiffs are residing within 1 km or 1.2 km in the area adjacent to the development project of this case. Thus, the court below should have examined whether the plaintiffs actually

Nevertheless, the lower court determined that the Plaintiffs had standing to sue for nullification or revocation of the instant disposition on the sole basis of the fact that the Plaintiffs owned land adjacent to the instant development project site. In so doing, the lower court erred by misapprehending the legal doctrine on standing to sue seeking nullification or revocation of administrative disposition on the ground that there is a possibility of infringement or infringement of environmental interests, and failing to exhaust all necessary deliberations.

2. The second ground for appeal

According to the provisions of the former National Land Planning and Utilization Act (amended by Act No. 7297, Dec. 31, 2004; hereinafter the same shall apply), the area of the national land shall be classified into five areas or more necessary for the preservation, maintenance, management, preservation, etc. of the relevant area in consideration of the actual conditions and characteristics of the land, future land utilization direction, etc., and so that population and industry are concentrated or anticipated, and such area requires systematic development, maintenance, management, etc. with respect to the relevant area, and the area systematically in accordance with the urban area in order to promote the agricultural and forest industry, the agricultural promotion area under the Farmland Act, or the conserved mountainous district under the Mountainous Districts Management Act, which is not within the urban area, etc. under the Framework Act on Environmental Policy (amended by Act No. 7297, Dec. 31, 2004; hereinafter the same shall apply) and the area of the national land shall be subdivided into five areas or more necessary for the preservation and management of the natural environment, but the area is difficult to be designated as the conservation and management area of the relevant area.

However, the head of the relevant administrative agency should determine whether the development project site conforms to the definition of a specific specific use area under Article 36(1) of the former Enforcement Decree of the Framework Act on Environmental Policy, based on the following: (a) where the specific use area under Article 36(1) of the former National Land Planning and Utilization Act is not designated, the head of the relevant administrative agency shall determine whether the development project site conforms to the definition of a specific use area under Article 36(1) of the former Enforcement Decree of the National Land Planning and Utilization Act.

Examining the reasoning of the judgment below in light of the records, the court below held that the development project site of this case was a land owned by ○○ Village and used as grassland for the purpose of gathering livestock jointly by village residents for a long time and suppression, and that approximately KRW 2.6 million neighboring the development project site of this case is also farmland or grassland used in the organic concentration industry, and that there is a beautiful landscape around the site of this case. In addition, the development project site of this case, which is designated as a natural monument near the site of this case as a natural monument on December 14, 2005 prior to the disposition of this case, the Administrator of the Cultural Heritage Administration did not err in the misapprehension of legal principles as to the development project management area of this case, since the purpose and environment of the advance examination of the development project of this case was considerably impossible to restore livestock and the time and cost required to restore them, and there is no need to interpret that the development project area of this case is subject to prior examination of environmental impact as a means of preventing environmental policy.

In addition, as long as the lower court’s determination that the instant development project site constitutes “Preservation Management Area” is justifiable, the allegation in the grounds of appeal as to the area of the instant development project site is without merit as it is alleged in the lower court’s assumptive judgment.

3. Ground of appeal No. 3

In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect violates the important part of the law and is objectively obvious. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law shall be examined from a teleological perspective, and at the same time, reasonable consideration shall be made on the specificity of the specific case itself. In a case where an administrative agency has taken an administrative disposition by applying a certain provision to a certain legal relation or factual relations, despite the lack of room for dispute over the interpretation of the law, the legal principles as to the legal relation or factual relations are clearly stated, and thus, if an administrative agency has taken the disposition by applying the above provision, it shall be deemed that the defect is significant and obvious. However, if there is room for dispute over the interpretation because the legal principles as to the legal relation or factual relations are not clearly revealed, it is merely erroneous as to the fact of the disposition (see, e.g., Supreme Court Decision 202Da68485, Oct. 15, 2004).

The basic principle of the former Framework Act on Environmental Policy is to ensure that all citizens enjoy a healthy and pleasant environment by clarifying the rights and duties of the people and the obligations of the State with respect to environmental preservation and by prescribing the basic matters for environmental policies to prevent environmental pollution and environmental damage and by properly managing and preserving the environment (Article 1), and to create a pleasant environment through qualitative improvement and preservation of the environment, and to maintain harmony and balance between human beings and the environment through such creation is an essential element for the national health and enjoyment of cultural life, the preservation of national land and the permanent development of the State, the State, local governments, business operators and the people shall endeavor to maintain and create an environment better, and to preferentially consider environmental preservation when they perform all acts using the environment, and to ensure that the current citizens can enjoy benefits widely and inherit such environment to the future generations (Article 2), and the head of the relevant administrative agency shall consult with the head of the relevant administrative agency or the head of the relevant administrative agency before he/she completes the consultation with respect to the development project to attain the objectives and basic principles of such legislation and the head of the relevant administrative agency or the head of the agency concerned shall establish and present environmental standards (the head of the administrative agency).

The purport of such provisions of the former Framework Act on Environmental Policy is not to protect the public interest related to the business concerned by allowing the business to be implemented in such a way that does not harm the environment, but to protect the individual benefits that can live in a pleasant environment without being affected by the environmental infringement beyond the permissible limit compared to the previous convictions. However, if the business subject to prior examination of environmental impact is subject to a disposition such as approval without prior examination of environmental impact, it will not be possible to achieve the legislative purpose of the prior examination of environmental impact in order to prevent environmental destruction and to maintain and create a pleasant environment, and if the business subject to prior examination of environmental impact is conducted without going through prior examination of environmental impact, the defect of such administrative disposition should not be deemed to violate the important provisions of the Act and subordinate statutes.

However, as seen earlier, the project area subject to prior examination of the development project according to the specific use area stipulated in Articles 6 and 36(1) of the former National Land Planning and Utilization Act is differently stipulated. The application for approval for the execution of the development project submitted by the non-party company to the defendant was included in the area of 6,418 square meters, and thus, could vary depending on the designation of the specific use area of the development project site of this case, the land of this case was not designated as the specific use area at the time of the disposition of this case. In such a case, the defendant should determine whether the development project site of this case conforms to the definition of the specific use area of this case after examining the actual use condition and characteristics of the development project site of this case, future land use direction, etc., and then, based on this legal principle, the decision of prior examination of the development project of this case is declared by the Supreme Court decision of this case only after the disposition of this case was made. Thus, even if the defendant did not consider the remaining development project of this case which erred interpretation of this Act and omitted the procedure.

Therefore, although the above defects existing in the disposition of this case cannot be deemed as null and void as a matter of course, the judgment of the court below which accepted the plaintiffs' primary claim on the premise that the disposition of this case is null and void as a matter of course, which affected the conclusion of the judgment by misapprehending the legal principles on the invalidation of

4. Conclusion

Therefore, all of the judgment 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 by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)