(영문) 대전지방법원 2016.12.15. 선고 2016구합393 판결

The defendant's disposition of "approval of an execution plan for power resource development business" publicly notified by Ministry of Trade, Industry and Energy on December 10, 2015 is revoked.

Reasons

1. Details of the disposition;

A. The plaintiffs are residents residing in Chungcheong City B (hereinafter referred to as “B”).

B. On December 10, 2015, the Defendant publicly notified A of the Ministry of Trade, Industry and Energy as the Ministry of Trade, Industry and Energy, the approval of the implementation plan for the C Construction Project (hereinafter referred to as the “instant project”) under Article 5(1) of the Electric Power Development Promotion Act (hereinafter referred to as the “instant disposition”), and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is the operator of the instant project.

C. According to the instant project implementation plan, the 154km high voltage line will be newly established, which passes through a single source, such as Chungcheong City D, Chungcheong City E, Chungcheong City F, Chungcheong City G, Chungcheongnam-si, Chungcheongnam-si, H, Chungcheong City I (hereinafter “instant project object”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) The Intervenor, while deciding whether to pass through the transmission line under the instant project, violated Article 5-2 of the Electric Power Source Development Promotion Act, which provides for the hearing of opinions of residents, as follows. Nevertheless, the Defendant’s disposition of this case, which restricts such illegality and approves the Intervenor’s implementation plan, was unlawful. Thus, the instant disposition is unlawful.

① In organizing the Location Selection Advisory Committee, the Intervenor excluded the representative of B residents who suffered the greatest damage due to the instant project.

B Around July 2013, residents (the plaintiffs) known of the candidate's progress, presented an alternative to the intervenors. At the Chungcheong City, a request was made to the J-Myeon Office to prepare a transitional drawing, and then requested an intervenor to review the participant. The intervenor thoroughly neglected the above plaintiffs and Chungcheong City's opinions.

(3) In the course of determining the optimal progress of candidates, the intervenor did not present the alternative process prepared by the J-Speaker to the Location Selection Advisory Committee, but presented only a single draft of the candidate progress selected by the intervenor and received a resolution thereon.

2) Considering the cost of electricity and the amount of supply, the necessity and urgency of the instant project are nonexistent, and when the transmission line approved by the instant disposition is constructed, the villages in which the Plaintiffs reside will completely spread to the transmission tower and the transmission line in addition to the existing transmission line. Accordingly, the Plaintiffs suffered environmental damage that may cause damage to the surrounding natural scenery, damage to the health of electromagnetic waves, damage caused by noise, infringement of the right to life due to the decline in land value, economic damage due to restrictions on farming activities, etc. In light of the following: (a) there is no appropriateness and economic feasibility of the progress of the transmission line approved by the instant disposition; (b) while the progress of the alternative transmission line that the Plaintiffs proposed by the instant disposition is considerably larger than the public interest to be achieved through the instant disposition; and (c) thus, the instant disposition was unlawful since it violated the principle of proportionality, thereby deviating from and abusing discretionary authority.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Whether Article 5-2 of the Electric Power Source Development Promotion Act is violated

Article 5-2 (1) of the former Electric Power Source Development Promotion Act (amended by Act No. 13862, Jan. 27, 2016; hereinafter referred to as the "former Electric Power Source Development Promotion Act") provides that "electric power resource developer shall hear opinions of residents, relevant experts, etc. (hereinafter referred to as "residents, etc.") in the area affected by the implementation of the project through perusal of the project implementation plan and briefing sessions before applying for approval," and Article 5-2 (2) of the same Act provides that "electric power resource developer shall reflect opinions of the residents, etc. heard pursuant to paragraph (1) in the implementation plan if it is deemed reasonable."

Comprehensively taking account of the respective descriptions and the overall purport of the arguments in Eul evidence Nos. 4 through 6 (including branch numbers; hereinafter the same shall apply), the intervenor held an explanatory meeting on the instant project at the Myeon Office on November 6, 2014 through the publication of the daily newspaper of the project implementation plan of the instant case, the publication of the website of the Chungcheong City, etc., and the publication of the website on November 6, 2014; the facts that at least 70 residents living in the area where the instant project is located, including Plaintiff L, attend the explanatory meeting; and the intervenor prepared a written review of the opinions of residents, etc.

According to the above facts, the intervenor has lawfully completed all the procedures for hearing the opinions of the residents, etc. required prior to the application for approval of the project implementation plan of this case pursuant to Article 5-2 of the former Electric Source Development Promotion Act. Meanwhile, according to Article 5-2 of the former Electric Source Development Promotion Act, the intervenor is sufficient to hear the opinions of the residents, etc. as above, or is not bound by or reflected in the opinion of the residents, etc., and even if the intervenor did not participate as a member in organizing the Location Selection Advisory Committee as alleged by the plaintiffs, or did not present the alternatives submitted by the plaintiffs or the J-Myeon Office to the Location Selection Advisory Committee after examining the alternatives submitted by the plaintiffs or J-Myeon Office. However, even if the Location Selection Advisory Committee is operated by the intervenor itself, it cannot be deemed unlawful on the ground of these circumstances (it does not include statutory provisions concerning its composition

Therefore, this part of the plaintiffs' assertion is without merit.

2) Whether or not the discretionary authority is deviates from or abused (aggravating the discretion)

A) The relevant administrative plan doctrine refers to an administrative plan that is established as an activity standard to realize a certain order at a certain point in the future by integrating and coordinating the relevant administrative means in order to achieve a specific administrative objective, such as the construction, maintenance, improvement, etc. of a city, based on a professional and technical judgment regarding administration. The relevant laws and regulations only provide abstract administrative goals and procedures, but do not provide for any particular provisions regarding the contents of the administrative plan. Accordingly, the administrative body has a relatively broad freedom to formulate and determine a specific administrative plan.

However, such freedom of formation, which an administrative body has, is not unlimited, but limited to a reasonable comparison between public and private interests as well as between public and private interests. In a case where an administrative body fails to implement a balance of interests at all while formulating and determining an administrative plan, or omits any matter that should be included in the subject of consideration of the balance of interests, or where the balancing of interests lacks legitimacy and objectivity (see, e.g., Supreme Court Decision 2003Du5426, Sept. 8, 2006).

B) Determination

In light of the above legal principles, in full view of the purpose and purport of the Electric Power Source Development Promotion Act, the contents of the implementation plan for electric power resource development business, and the effect of the approval thereof, the instant disposition that approved the execution plan for electric power resource development business constitutes the formulation and decision of the administrative plan. Therefore, the Defendant is unlawful in a case where: (a) a relatively broad freedom of formation is granted to determine the specific contents; (b) a case where a person does not perform any profit balancing at all or where matters to be included in the subject of consideration of balancing

Comprehensively taking account of the following circumstances acknowledged by Gap evidence 1 through 20, Eul evidence 1 through 18, and the purport of the entire pleading and video, it cannot be deemed that the defendant did not carry out at all the benefit balancing while rendering the instant disposition, omitted matters to be included in the subject of consideration of the benefit balancing, or imposed the benefit balancing lacking legitimacy and objectivity. Thus, the prior plaintiffs' assertion of deviation or abuse of discretionary power is without merit on different premise.

① The instant project is designed to reinforce the electric power system and supply stable electricity in the Chungcheong region through the formation of a 154kV transmission network of 345kV Mfers. If the instant project is not implemented in a timely manner, the breakdown is likely to occur due to the expansion of the breakdown in the major arterial line system in the Chungcheong region when the transmission line of the neighboring system is broken down.

Therefore, the necessity to implement the instant project in a timely manner is recognized.

② In the event that transmission lines are installed according to the alternatives presented by the Plaintiffs, it is necessary to take measures, such as new construction of a number of steel towers, new construction of a closing or closing station, or new installation of a transformation station in the N area after the completion of the implementation plan around 2012. Nevertheless, the Plaintiffs asserted that if the alternative cost is calculated, the total cost is less than the total cost required under the implementation plan approved under the instant disposition, and lack of legitimacy and objectivity of sentence. However, the Plaintiffs asserted that (i) there is insufficient objective evidence to acknowledge the validity and adequacy of the cost claimed by the Plaintiffs; (ii) there is insufficient objective evidence to acknowledge the appropriateness and appropriateness of the cost; and (iii) there is insufficient construction investment cost, additional operating cost, removal or storage cost incurred when the transmission line is installed in accordance with the alternatives presented by the Plaintiffs. In light of the above, the evidence presented by the Plaintiffs alone cannot be readily concluded as an alternative plan or as an economic situation lower than that of the instant disposition.

③ The Plaintiffs asserts that, when using new public methods, such as establishing a new 154kV transmission line within the existing 345kV steel tower, the propriety of alternatives and economic feasibility would be monthly due to the possible installation of the transmission line according to the alternatives presented by the Plaintiffs at low cost without a new construction of the steel tower. However, even according to the Plaintiffs’ assertion, there is no case of construction by which such public methods are actually applied, and there is no objective evidence that new public methods are technically available or safety is verified, and thus, it is difficult to deem that the failure of adopting a new public method claimed by the Plaintiffs loses the legitimacy and objectivity of balancing profits in the process of the instant disposition, and thus, the instant disposition is unlawful.

④ The electromagnetic waves generated from the transmission lines installed under the instant project meet the standards publicly announced by administrative agencies, such as the World Health Organization’s Health Environment Standards and the Ministry of Trade, Industry and Energy. Nevertheless, there is no evidence to prove that the instant disposition infringes on the health of the Plaintiffs.

6. The project implementation plan of this case was conducted through environmental impact assessment, and there is no evidence to prove that environmental destruction, pollution, noise, etc. exceeds the tolerance limit due to the project of this case.

(6) Any property damage caused by the project in this case by a landowner, etc. may be compensated through expropriation procedures, etc.

7) During the process of determining the passing of transmission lines, the Intervenor organized and operated the Location Selection Committee consisting of Chungcheong-si Council members, public officials of the Korea Forest Service, nine representatives of residents, etc., and received civil petitions from E residents at around 20 times in Chungcheong-si and respondeded to review opinions or consulted on visits (a considerable number of B residents’ civil petitions). The Intervenor sought optimal measures through the above process, and sought approval of the instant project implementation plan from the Defendant, and no other circumstance exists to suspect that the passing of transmission lines under the instant project has been arbitrarily determined.

③ From July 2013, 2013, residents 0 and B performed activities in the name of so-called "the committee against the opposition to the Electric Transmission Line", etc., and requested the Board of Audit and Inspection to audit the instant project or submit a civil petition to the Ministry of Strategy and Finance, but there were no special problems as to the instant project, such as the termination of civil petition for inspection to the effect that there is no problem in the audit results

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.