(영문) 인천지방법원 2019.2.21.선고 2018구합52154 판결

1. Of the plaintiff A (Attached List Nos 1, B, C, D, E, F, part of the claim for revocation of the implementation of the harbor project among the plaintiff's lawsuits, and the plaintiff H, I, J.K, L, M, N, P, P, Q, Q, Q, M, T, U, M (Attached List Nos 22, W, X, Y, Z, AAB, AC, AE, ACE, AE, AE, AF, AH, AH, AI, AJ, AK, AK, AL, and AM's lawsuits.

2. The remaining claims of the Plaintiff A (attached Form 1), B, C, D, E, F, and G are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

On January 16, 2018, the public announcement of the implementation of a harbor project made by the Defendant to the Incheon Regional Maritime and Fisheries Office, and the public announcement of the implementation plan for a harbor project made to AO by the Incheon Regional Maritime and Fisheries Office

Reasons

1. Details of the disposition;

On January 16, 2018, the defendant publicly announced that "A Q Q construction" (hereinafter referred to as "the instant harbor construction") will be implemented for 36 months from the commencement date of the construction work period in Jung-gu and Dong-gu, Incheon for the purpose of improving the quality of life of local residents due to the improvement of residential environment through the creation and reclamation of speculative places for dredging soil speculation occurring from the Incheon Northern port for the purpose of construction and reclamation of land. On the same day, pursuant to Article 9 (8) of the Harbor Act, the defendant publicly announced the establishment of the instant harbor construction implementation plan to the Incheon Regional Maritime Affairs and Fisheries Office, and publicly announced the implementation plan to the Incheon Regional Maritime Affairs and Fisheries Office pursuant to Article 10 (1) of the Harbor Act (hereinafter referred to as "public announcement of this case").

[Grounds for recognition] The descriptions of evidence Nos. 1 and 2, and the purport of the whole pleadings

2. The plaintiffs' assertion

Article 9(3) of the Harbor Act shall apply to the case where the Defendant intends to implement a harbor project with the permission of the non-management authority to implement the harbor project. The Defendant’s instant harbor project violates Article 9(3)1 and 2 of the Harbor Act, since the basic design and the working design is commenced before the construction plan is included in the basic harbor plan and there is no need for the management and operation of the harbor. Thus, the instant public notice violates Article 9(3)1 and 2 of the Harbor Act.

The Defendant conducted an environmental impact assessment on the instant harbor works, and the Defendant did not properly supplement the written request to supplement the written request from the basin environmental office for the construction of dredging soil site as numerical data in relation to land use. As such, the instant public notice was unlawful since it was defective in the process of environmental impact assessment.

3. Determination on this safety defense

A. The defendant's main defense

The notice and public notice of this case do not constitute an administrative disposition subject to appeal litigation, and there is no legal interest in seeking the revocation of the notice and public notice of this case to the plaintiffs.

B. Determination

1) Whether the instant notice and public notice are an administrative disposition subject to appeal litigation

Whether a certain act of an administrative agency can be a subject of appeal cannot be determined abstract, general, and administrative disposition is an act that directly affects the rights and obligations of the people as an enforcement of law with regard to a specific fact by an administrative agency as the subject of public authority. In mind, the administrative disposition must be determined specifically and individually by taking into account the content and purport of the relevant Act and subordinate statutes, the content, form, and procedure of the act, the actual relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010; Supreme Court Decision 2017Du42514, Sept. 21, 2017).

The public notice of this case is merely a notification to the general public pursuant to Article 9(8) of the Harbor Act, including the purpose and outline of the project of this case, construction period, etc., which the Defendant intends to implement pursuant to Article 9(1) of the Harbor Act, and does not have any provision regarding the public notice of this case, unlike the public notice of this case, regarding the legal fiction of the relevant authorization, permission, etc. or the legal fiction of the approval of the project for the expropriation and use of land, etc., unlike the public notice of this case. Thus, the public notice of this case does not in itself directly change the rights and obligations of the people,

The public notice of this case is deemed to have obtained project approval under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and to have obtained relevant authorization, permission, etc. pursuant to Articles 77(2) and 85(1) of the Harbor Act. Thus, it constitutes an administrative disposition that directly changes the rights and obligations of the people and thus constitutes an appeal litigation.

2) Whether the plaintiffs are standing to sue or not

A third party, who is not the direct counter-party to an administrative disposition, filed a lawsuit seeking revocation on the ground that his/her environmental interest is infringed or is likely to be infringed upon by the administrative disposition, shall be admitted to have standing to sue to prove that his/her environmental interest is individually, directly, and specifically protected interests under the relevant laws and regulations or relevant laws and regulations: Provided, That in cases where the scope of the right of influence, which is anticipated to be affected by the project, such as the act done by the administrative disposition, is specifically stipulated in the relevant laws and regulations or relevant laws and regulations, it may be anticipated that the residents in the affected area will directly and seriously cause environmental damage due to the relevant disposition. Such environmental interest is presumed to be directly and specifically protected for the individual residents, and it may be acknowledged as legally protected interests, barring special circumstances, because it is presumed that there is a concern for infringement or infringement of the environmental interest to be protected by the law. However, other residents outside the affected area is recognized as being legally protected only when it proves that the environmental interest has been infringed or is likely to be infringed by the previous disposition (see, e.g., Supreme Court en banc Decision 2016Du316.2016.

The instant harbor project constitutes a project subject to environmental impact assessment under Article 22 (1) 4 of the Environmental Impact Assessment Act and Article 31 (2) [Attachment Table 3] of the Enforcement Decree of the same Act, and the Plaintiff A (Attachment Table 1 Nos. 1, B, C, D, E, F, and G are residents in Jung-gu, Incheon, the area subject to environmental impact assessment of the instant harbor project, and the Dong-gu, and are actually presumed to have infringed or have concerns over infringing on environmental interests.

However, there is no evidence to acknowledge that the rest of the plaintiffs except the plaintiffs A (Attachment List Nos. 1, B, C, D, E, F, and G are residents outside the area subject to the environmental impact assessment of the instant harbor project, and there is no evidence to prove that the instant harbor project has suffered or is likely to suffer environmental damage exceeding the tolerance limit due to the instant harbor project. Therefore, the rest of the plaintiffs are

4. Whether the publication of this case is illegal

According to the purport of evidence No. 10-1 and No. 2 of the evidence No. 10-2 and the purport of the whole pleadings, the Defendant: (a) conducted an environmental impact assessment on the instant harbor project from November 9, 2015 to December 6, 2016; (b) on March 31, 2017, the head of the Han River Basin Environment Office maintained the past landscape as a small-scale harbor in which the instant harbor project will be implemented; (c) has the value of coastal landscape as a landscape; and (d) the ocean reclamation needs to be carefully examined when considering the impact of marine water and marine ecosystems; (b) there is a lack of a need to present the numerical value of the instant harbor project based on the land speculation volume, such as dredging soil, etc. in the Incheon Metropolitan City area; (b) the Defendant may, on the basis of the value of dredging soil, etc., submit to the basin environmental office of Han River at the rate of 2013 to 2013 to 2031 to 20130 to 361 to 2000to 2636.

As above, since the defendant supplemented the request to supplement the basin basin basin environmental office, it is difficult to see that the contents of the environmental impact assessment on the instant harbor works are inadequate, and there is no other reason to see that there is any defect in the environmental impact assessment on the instant harbor works.

Therefore, the notice of this case cannot be deemed unlawful since it was defective in environmental impact assessment.

5. Conclusion

Of the lawsuits of the Plaintiff A (Attached Nos. 1, B, C, D, E, F, and G, the part concerning the claim for revocation of the instant notice and the lawsuits of the Plaintiffs except for the Plaintiff A (Attached Nos. 1, B, C, D, E, F, and G) and the remaining claims of the Plaintiffs are dismissed as unlawful. It is so decided as per Disposition by the Plaintiff (Attached Nos. 1, B, C, D, E, F, and G’s remaining claims are dismissed as they are groundless.