(영문) 서울행정법원 2020.11.26. 선고 2019구합81186 판결

B. The Plaintiffs are residents of the Republic of Korea who reside in the Republic of Korea, the Republic of Korea, the Republic of Korea, the Republic of Korea.

A. On June 25, 2019, the Defendant rendered to the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) a disposition of permission for solar power generation business with the following contents based on Article 7(1) of the Electric Utility Act (hereinafter referred to as the “instant disposition”).

1) Business name: C development project (hereinafter referred to as “instant project”) location: 95MW (DJ 90MW, E5MW), 95 MW

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

We examine the legitimacy of the instant lawsuit ex officio.

A. Relevant statutes

[Attachment 2] The entry of "related Acts and subordinate statutes" is as follows.

B. Relevant legal principles

A person who is not the direct counter-party to an administrative disposition and seeks the cancellation of his/her own interest for the reason that his/her own interest is infringed or is likely to be infringed upon by the administrative disposition is recognized as standing to sue to prove that his/her interest is individually, directly, and specifically protected under the relevant laws and regulations or the relevant laws and regulations: Provided, That in cases where the relevant laws and regulations or the relevant laws and regulations specifically stipulate the scope of the right to influence that the project would be affected by the environmental infringement, such as the act done by the administrative disposition, etc., the residents within the affected area may expect that the relevant administrative disposition would cause direct and serious environmental damage. Such environmental benefits are directly and specifically protected to the individual residents, unless there are special circumstances, standing to sue shall be acknowledged as being recognized as the direct and specific interest that is actually presumed to be infringed or threatened to be protected under the laws and regulations, and other affected areas shall prove that there is infringement or risk of infringement on his/her own environmental interest (see, e.g., Supreme Court Decision 2009Du258929, Feb. 29, 2009).

C. Determination

In light of the following circumstances that can be recognized by comprehensively taking into account the relevant laws and the purport of the entire pleadings, such as the Electric Utility Act, the disposition of this case cannot be deemed to have environmental interest as an environmental interest protected by the relevant laws and regulations, such as the Electric Utility Act, or the relevant laws and regulations beyond an abstract and indirect interest in relation to the disposition of this case. Therefore, the plaintiffs have no legal interest to seek cancellation of the disposition of this case. Therefore, the lawsuit of this case is unlawful, since the plaintiffs have no standing to seek cancellation of the disposition of this case

1) The electricity generation business based on the Electric Utility Act shall normally be carried out in accordance with the following procedures:

A person shall be appointed.

Of the above procedures, Article 7 (1) of the Electric Utility Act requires that a person who intends to operate an electric generation business, etc., which is the first phase of the above procedures, shall obtain a license from the defendant, and Article 7 (5) of the Enforcement Decree of the Electric Utility Act requires that a person who intends to operate an electric generation business, etc., such as the electric generation business, has financial capacity and technical capacity necessary to properly operate the electric utility business (subparagraph 1), that a person may operate the electric utility business according to a plan (Paragraph 2), that "electric power plants or fuels may operate the electric power business under a plan" (subparagraph 2), that "it shall not interfere with the operation of the electric power system because electricity plants or fuels are concentrated in a specific region" (Paragraph 4-2), and that "it shall not meet the standards prescribed by Presidential Decree as necessary for the public interest (subparagraph 3 and 4 shall be related to the electric generation business and district electric generation business), and that there shall not be any interference with the implementation of the basic plan for the electric generation business under Article 4 (2) of the Electric Utility Act before being affected by residents in a specific region (Paragraph 1).).

2) In the process of construction of a solar power plant, hearing the opinions of residents and environmental impact assessment is from the stage when an electric power resource developer, who is an operator of electric power generation business, establishes an implementation plan for electric power resource development business and obtains approval from the defendant. In other words, an electric power resource developer shall establish an implementation plan for electric power resource development business and obtain approval from the defendant (in this case, it is deemed that permission for development acts under the National Land Planning and Utilization Act has been granted pursuant to Article 6(1)1 of the former Electric Power Source Development Promotion Act). The above implementation plan shall include matters concerning preserving the national natural environment (Article 5(1) and (3)6 of the former Electric Power Source Development Promotion Act), and shall attach an environmental impact assessment report, strategic environmental impact assessment report, small-scale environmental impact assessment report, and examination report on environment under the Environmental Impact Assessment Act (Article 15(2) of the Enforcement Decree of the Electric Power Source Development Promotion Act). In addition, where an electric power resource developer wishes to obtain approval from the defendant, in principle, hear opinions of residents and other opinions should be reflected in the implementation plan.

3) Article 7 (5) 2 of the Electric Utility Act and Article 7 (3) 1 of the Enforcement Rule of the Electric Utility Act stipulate that "the expropriation level of an area prearranged for the construction of electric power facilities shall be high" as one of the criteria for the examination of "the previous project may be implemented in accordance with the plan," but Article 7 (3) 1 of the Enforcement Rule of the Electric Utility Act does not stipulate that "the prior expropriation of electric power facilities means "the prior acceptance of an area" and "the expropriation of electric power facilities" is likely to be mistaken or confused with an area where the electricity generation business is planned to be implemented in an efficient manner without considering the opinion of residents who will be affected by the implementation of the electric power generation business, and that "the prior announcement of the plan for the construction of electric power facilities" should not be made in accordance with Article 7 (1) 1 of the former Enforcement Rule of the Electric Utility Act to the extent that it is reasonable to use the previous installation of electric power facilities to the extent that the prior announcement of the plan for the construction of electric power generation facilities is not applied.

4) Although the Intervenor filed an application for the instant disposition for the implementation of the instant business in the future, it cannot be deemed that there was an individual, direct, and specific environmental interest protected by the Electric Utility Act, which was in force at the time of permission for electric generation business under the Electric Utility Act, barring any other special circumstance, even though the Intervenor’s specific application following the instant disposition is dissatisfied with the approval of the Defendant’s implementation plan for electric source development business

In this regard, the plaintiffs asserted that the legal status to dispute the disposition of this case is recognized against the plaintiffs who have been placed in the same page since the small-scale environmental impact assessment conducted in relation to the business of this case was set as the area subject to the plaintiff's electric source development project of this case, and according to Gap's statements (including the number of branches) Nos. 5, 6, 10, Eul's Nos. 1, 2, and 4, the small-scale environmental impact assessment related to the business of this case was implemented on or around February 2020 as part of the area subject to the business of this case. However, it is recognized that the above small-scale environmental impact assessment was conducted in the process of applying for the implementation plan for the electric source development project of this case after the disposition of this case, and since the above small-scale environmental impact assessment was not established as "the scope of the influence right which is anticipated to be affected by the action of this case", it is not expected that the plaintiffs might directly and seriously cause environmental damage due to the disposition of this case, and it is insufficient to recognize to each plaintiff Gap's No.

3. Whether the instant disposition is lawful (preliminary determination)

A. Summary of the plaintiffs' assertion

1) procedural defect

A) Even though the Defendant did not hold a public hearing, etc. widely and did not hold it, the Defendant violated Article 22(2) of the Administrative Procedures Act.

B) Even if the Decree of the Rearrangement of Agricultural and Fishing Villages directly or analogically applies to the instant disposition, the Defendant has procedural defects not subject to the procedures for gathering opinions from residents under Article 104 of the Rearrangement of Agricultural and Fishing Villages Act and Article 83(1) of the Enforcement Decree

2) Material defect

A) Article 7(3)1 of the Enforcement Rule of the Electric Utility Act provides that “The degree of acceptance of an area prearranged for the construction of electric facilities is high” means cases where the local government and the residents of the area prearranged for the construction of electric facilities agree on the construction of electric facilities. To determine this, the right information on the electric generation business should be provided to the residents at the pre-execution stage of the relevant electric generation business, and fair and reasonable opinion gathering procedures should be conducted. However, at the residents’ briefing session as of December 12, 2017 and February 2, 2018, the high-interest group should guarantee the residents to share of 10% in total with incentives according to the instant project at each residents’ briefing session as of February 12, 2017. Since the project cost of the instant project consists of 90% of loans and 10% of its equity capital, residents’ share in the project means 10-20% of the initial 10% consent to the public opinion poll conducted by the public opinion poll is excluded from the public opinion poll.

B) According to Article 7(3)2 and 7(3)1(f) of the Enforcement Rule of the Electric Utility Act, a plan for securing and placement of sites is required to be concrete and feasible. In the case of the instant project, there is no specific plan regarding the plan for securing and placement of sites. In addition, according to the “Guidelines for Environmental Assessment of the Water-Based Multi-Power Power Generation Project,” which is applicable to the instant project, a water-based solar power plant should be installed at a location where it is possible to maintain more than 3 meters of surplus depth from the minimum level of design condition, and where there is a risk of concentration of environmental impacts, such as light injection and reduction by solar power plant, it shall be preferentially examined, and it shall be installed to ensure that it is in harmony with its surrounding area by examining the impact of natural landscape. Thus, there is no possibility of realization as it fails to meet the instant project.

C) In light of the fact that the instant project cannot be deemed a resident’s private participation project that had been initially aimed at due to low shares of the residents, and that when the instant project is carried out according to the instant disposition, D’s ecosystem is threatened, D’s natural landscape and tourism resources are rapidly decline, while most revenues from the instant project are brought about by banks and enterprises with high shares, most of the revenues from the instant project may increase flood damages in the areas of interest groups that occur frequently, and that the amount of the instant project may increase flood damages in the area of interest groups that occur frequently, and that it does not take into account harmony with the natural landscape, the instant disposition is a defect that deviates from and abused discretionary authority.

(b)the existence of procedural defects;

1) Whether a public hearing is unlawful

According to Article 22(2) of the former Administrative Procedures Act (amended by Act No. 1678, Dec. 10, 2019) (amended by Act No. 1678, Dec. 10, 2019), an administrative agency is obligated to hold a public hearing in cases where the administrative agency recognizes that a disposition is required to hold a public hearing in other Acts and subordinate statutes, etc. (Article 22(2) (Article 1) and where the administrative agency recognizes that a wide range of influence of the relevant disposition is necessary to gather broad opinions (Article 22(2)). There is no reason to deem that the instant disposition constitutes a case where the relevant Acts and subordinate statutes stipulate that a public hearing shall be held. There is no evidence to deem that the Defendant “recognition” of the instant disposition is necessary to gather broad opinions. Accordingly, this part of the Plaintiffs’ assertion

Article 104 of the Rearrangement of Agricultural and Fishing Villages Act provides that, in cases of designating a rural tourism and resort complex under Article 82 of the same Act, a district for developing marginal farmland, etc. under Article 94 or 95 of the same Act, and a village improvement zone under Article 101 of the same Act, residents' opinions shall be heard, as prescribed by Presidential Decree. However, the disposition of this case is not a disposition under the Rearrangement of Agricultural and Fishing Villages Act, but a disposition under the Rearrangement of Agricultural and Fishing Villages Act is different from the purpose of legislation, and the Electric Utility Act and the Rearrangement of Agricultural and Fishing Villages Act do not require the procedures for hearing opinions under the Rearrangement

C. Whether there are substantive defects

1) As seen earlier, as seen earlier, whether the requirements under Article 7(3)1 of the Enforcement Rule of the Electric Utility Act are unlawful or not, the degree of acceptance of the planned site for the construction of electric installations under Article 7(3)1 of the Enforcement Rule of the Electric Utility Act is reasonable to interpret it as the degree of acceptance of electricity produced by the relevant electrical installation costs in the planned site for the construction of electric installations, i.e., the degree of demand for electricity in the planned site for the construction of electric installations. Therefore, the prior Plaintiffs’ assertion is without merit.

B) Unlike the opinion, even if the local government itself of the prospective area for the construction of electric facilities and the surrounding area have high level of acceptance or expropriation of electric installations, “the extent of acceptance” is so-called indefinite concept that the defendant’s discretion or determination has been made in the determination of its requirements. The following facts and circumstances revealed by Gap evidence 1, Eul evidence 3-1, and evidence 2, i.e., the residents’ explanation meeting as of December 12, 2017 and the residents’ explanation meeting as of February 2, 2018 were held, and even if this case’s public opinion was not presented to the residents’ consent from around July 20, 2018 to August 26, 2018, it cannot be viewed that there was no other evidence to view that the above residents’ consent was given to the residents’ consent by the 6th head of the Dong-gun as of August 27, 2018, and that there was no other evidence to view that the plaintiffs’ consent was given to each of the above residents’ consent.

2) Whether the requirements under Article 7(3)2 of the Enforcement Rule of the Electric Utility Act and subparagraph 1(f) of the attached Table 1 are unlawful

A) Article 7 (3) 2 of the Enforcement Rule of the Electric Utility Act provides that the plan under subparagraph 1 (f) through (i) of [Attachment Table 1] shall be specific and feasible in accordance with the examination criteria of “the plan to operate the electric utility business” under Article 7 (5) 2 of the Enforcement Rule of the Electric Utility Act, and subparagraph 1 (f) of [Attachment Table 1] provides that “the plan to secure and place a site” shall be included in the business plan. In full view of the structure and contents of the Electric Utility Act, in examining the application for the permission for the permission for the permission for the electric generation business, the defendant may refuse the application for the permission for the electric generation business, considering that the plan to secure and place a site is specific and feasible, in a case where it is deemed difficult to secure the site or that the arrangement plan is likely to be abstract and feasible

B) In light of the following circumstances acknowledged as seen earlier, i.e., (i) the intervenor plans to implement the instant project at the Jeju-gun B, and to secure the site by leasing it from the High-gun, and (ii) the consultation with the High-gun is expected to have been completed; (iii) since detailed design plans relating to the instant project have been prepared at the stage of formulating the implementation plan for electric source development business and obtaining the Defendant’s approval, even if the detailed plan was not prepared at the time of the instant disposition, such as the plaintiffs’ assertion, it cannot be denied the establishment and realization of the site security and placement plan; and (iii) the guidelines for the environmental assessment of aquatic solar power generation projects invoked by the plaintiffs are not applicable to the instant disposition as the guidelines applied to the implementation of small-scale environmental impact assessment.

3) Whether it is illegal to deviate from or abuse of discretionary power

The evidence submitted by the plaintiffs alone is insufficient to recognize the fact that the project of this case causes destruction of the ecosystem and damage to the natural landscape, and there is no circumstance to deem that there is a defect in deviation or abuse of discretionary power, such as erroneous application of the permission standards prescribed by the Electric Utility Act in granting electricity generation business permission under Article 7 of the Electric Utility Act. Therefore, the plaintiffs' assertion on this part is without merit.

4. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the ground that the lawsuit of this case is unlawful and dismissed.

Judges

Awards and decorations by the presiding judge;

Judges Lee Jae-ho

Judges Kim Jae-jin

Note tin

1) In the reply, the defendant may seek the revocation of the disposition of this case against each of the plaintiffs in the preparatory documents dated May 12, 2020.

The main defense to the effect that standing to sue is not recognized, but was withdrawn on the second date for pleading.

(ii) the installation and improvement of electrical facilities and their ancillary facilities for electricity generation, transmission and transformation (hereinafter referred to as “electric source facilities”).

Article 2 subparagraph 2 of the Electric Power Source Development Promotion Act.