2016Nu72138 Invalidity, etc. of approval of execution plan for electric power resource development business

A

The Minister of Trade, Industry

Korea Electric Power Corporation

Seoul Administrative Court Decision 2016Guhap61235 decided October 14, 2016

January 11, 2017

February 15, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the supplementary participation.

The judgment of the first instance shall be revoked.

In the first place, the part of the project for compensating the transmission line compensation (security of power source) among the disposition of approval of the execution plan for electric source development business rendered by the Defendant against the Intervenor joining the Defendant (hereinafter referred to as the “Supplementary Intervenor”) on March 30, 2015 is invalid. In the second place, the part of the project for compensating the transmission line compensation (security of power source) among the above approval disposition is revoked.

1. Quotation of the first instance judgment

The reasoning for this court's explanation is as follows, except for the dismissal of some contents and addition of the following judgments, and thus, it is identical to the reasoning of the judgment of the court of first instance. Thus, it shall be accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Parts to be dried;

The second written judgment of the court of first instance shall be followed from 14th to 16th as follows.

On October 14, 2013, the Plaintiff filed a lawsuit against the Intervenor seeking the removal of the transmission tower and the transmission line and the transfer of the site thereof. The Intervenor, who installed and managed the above transmission tower and the transmission line on the land of the instant forest, filed a lawsuit seeking the return of unjust enrichment equivalent to the rent due to possession. The Seoul Central District Court (2013DaDa272585) accepted all the Plaintiff’s claim. The Intervenor appealed on the part of the claim for removal and the transfer of the site. The Seoul Central District Court (2015Na29465) (20) which was the appellate court’s appellate court (2015Na29465) dismissed the Plaintiff’s claim for removal and transfer of the instant forest as of June 23, 2016, and deposited compensation for the instant forest as a result of expropriation and use by the Central Land Expropriation Committee, and then acquired divided superficies and divided superficies on the land of the instant forest, and thus, the Plaintiff’s claim for removal and transfer of the title of the instant forest and its claim for removal.

3. Additional determination

Article 5-2(1)4 of the Electric Source Development Promotion Act also provides that the Plaintiff’s right to property, procedural basic rights, and rights to equality of the landowner is unconstitutional. The Plaintiff asserts that the defect of the instant disposition that did not hear the Plaintiff’s opinion at the time of the instant disposition is serious and clear and invalid.

However, as seen earlier, considering the fact that approval of the project plan to secure the source of the right to use the land, etc. already installed, may be controlled in the process of balancing the public interest due to the implementation of the project in question and the private interest of private persons such as property rights, etc., when examining whether to deviate from or abuse of discretionary authority, even if the above provision provides that the project securing the right to use the land, etc. installed under Article 5-2 (1) 4 of the Electric Power Source Development Promotion Act does not go through the procedures for hearing opinions of residents, etc., even if the above provision does not go against the principle of equality by excessively infringing the landowner’s fundamental rights, restricting the property rights, or discriminating against the land in which the power source facilities are not installed without any reasonable reason. In order for the administrative disposition to be null and void, it must be deemed that there is an unlawful ground for disposition and the reason for violation of the Constitution should be objectively obvious before the Constitutional Court’s decision unconstitutionality is rendered (see, e.g., Supreme Court Decision 2010HunBa109, Sep. 30, 2019).

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Mobilization by the presiding judge

Judges Yoon Jong-dae

Judge Lee Jae-soo