(영문) 인천지방법원 2015.1.22.선고 2014구합1684 판결

1. Of the instant lawsuit, the part on May 7, 2014 seeking the revocation of a disposition of non-permission to charge liquefied petroleum gas, which was filed by the Defendant against the Plaintiff, shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The defendant's disposition of non-permission for each liquefied petroleum gas filling business against the plaintiff on May 7, 2014 and September 5, 2014 shall be revoked.

Reasons

1. Details of the disposition;

(a) Application for permission for a liquefied petroleum gas filling business filed by a light energy company (hereinafter referred to as "light energy"), and the first and second nonpermission disposition and the second process of administrative litigation thereon;

1) On February 26, 2010, the ordinary energy applied for permission for a liquefied petroleum gas charging business to the Defendant on the Yeonsu-gu Incheon Metropolitan City and two lots located within the development-restricted zone (hereinafter referred to as “large Energy Project Site”). On March 5, 2010, the ordinary energy received the first non-permission disposition from the Defendant on the ground of non-establishment of the placement plan. Accordingly, the ordinary energy was awarded a final and conclusive judgment by filing a lawsuit seeking the revocation of the said non-permission disposition (Seoul High Court Decision 20107 Gohap 1570, 2010Du3033, Seoul High Court Decision 2011Du9768, respectively), and the ordinary energy was awarded a final and conclusive judgment by filing a lawsuit seeking the revocation of the said non-permission disposition.

2) In accordance with the foregoing final judgment, the Defendant rendered a second non-permission disposition on November 16, 201, on the ground that it did not secure the road distance passing through the Yeonsu-gu Incheon Metropolitan City development restriction zone, and that the land for light energy was unable to secure more than 5 meters, the Defendant filed a lawsuit seeking revocation of the second non-permission disposition and received a final and conclusive judgment in favor of the Defendant (Seoul District Court Decision 2012Guhap793, Seoul High Court Decision 2012Nu35674, Supreme Court Decision 2013Du10311, respectively).

B. The plaintiff's application for permission for liquefied petroleum gas filling business, and the first non-permission disposition and administrative litigation process

1) On February 19, 2013, the Plaintiff filed an application for permission for the filling business of liquefied petroleum gas (hereinafter “instant application”) with the Defendant on the Yeonsu-gu Incheon Metropolitan City and three lots located within the development restriction zone (hereinafter “Plaintiff’s business site”).

2) On February 22, 2013, the Defendant secured the distance under subparagraph 2 for each Si/Gun/Gu within the development restriction zone" under the proviso to Article 7 subparagraph 2-2 (a) of the Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the "Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones") means the case where the distance of roads passing through the development restriction zone for each Si/Gun/Gu is at least 2 km in the case of installing a gas station, and at least 5 km in the case of installing a gas station for filling cars. In the case of the Plaintiff’s project site, the distance of roads passing through the development restriction zone for the Yeonsu-gu Incheon Metropolitan City was not secured for more than 5 km in the case of the Plaintiff’s project site, and ② the Plaintiff’s project site is an area of buried cultural heritage under Article 4 of the Act on the Protection and Investigation of the Culture Products and Article 3 of the Enforcement Decree of the same Act.

3) The Plaintiff filed an administrative litigation seeking the cancellation of the previous value of the instant case as Incheon District Court 2013Guhap1229, and the said court rendered a judgment of acceptance on the ground that: (i) the proviso of Article 7(2)2-2(a) of the Enforcement Rule of the Act on the Development Restriction Zones of August 9, 2013 should be interpreted to mean that the distance between the charging stations should not be less than 5 meters in installing the relevant Si/Gun/Gu automobile charging stations; (ii) the instant application cannot be rejected on the ground that the distance from the road passing through the development restriction zone is less than 5 km; and (iii) no development act is deemed prohibited solely on the ground that the area of buried cultural heritage is an area of buried cultural heritage, and according to the relevant provision, the charging station project is not a project subject to the surface inspection, and thus, the Defendant appealed the appeal on January 3, 2014, which became final and conclusive, and thus, rejected each of the Plaintiff’s second disposition and second disposition against the Plaintiff.

1) On February 12, 2014, the Defendant notified the Plaintiff and the Defendant to the effect that “the Defendant would apply again for business permission because it is in the process of establishing a plan for placement,” and on April 14, 2014, the Defendant announced “the plan and standards for the placement and installation of a liquefied petroleum gas filling station for automobiles within the Yeonsu-gu Incheon Metropolitan City development restriction zone”, “the receipt and criteria for the selection of applicants for the selection of a liquefied petroleum gas filling station for automobiles in the development restriction zone of Yeonsu-gu Incheon Metropolitan City,” and the announcement was made on May 7, 2014, respectively.

2) On May 7, 2014, the Defendant: (a) rendered the second non-permission disposition to the effect that the Plaintiff’s project site should be prior to the allocation plan in accordance with the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Zones Act”); (b) the Defendant rejected the application of this case prior to the allocation plan; and (c) rendered the second non-permission disposition to the effect that the application of this case would be re-written according to the details of the Defendant’s notice and public notice; and (d) rejected the application of this case to the same effect with respect to light energy.

3) Meanwhile, on February 4, 2014, the Plaintiff filed an application with the Incheon District Court 2014033 to compel the Defendant to take a second measure against the instant application in accordance with the purport of the final and conclusive judgment revoking the previous disposition, and on May 2, 2014, the Defendant received a decision of acceptance that “if the Defendant did not take a second measure in accordance with the said final and conclusive judgment, he would pay KRW 2,00,000 per day until the time of the disposition.” Accordingly, the Defendant filed an appeal with Seoul High Court 2014lu148, but the Defendant was dismissed on May 29, 2014, and the said decision became final and conclusive as is.

4) In the above indirect compulsory performance case, the Defendant asserted that the notice of the selection of a business operator according to a new placement plan and the disposition on May 7, 2014 was a re-disposition in accordance with the above final judgment, but the above court cannot be deemed to have been issued a certain disposition against the Plaintiff solely on the said notice, and the above disposition is in conflict with the binding force of the previous final judgment, and its defect is grave and obvious, and thus, the Defendant still has a duty to re-disposition in accordance with the above

5) On March 11, 2014, the ordinary energy also filed an application for indirect compulsory enforcement with the Incheon District Court 2014079, ordering the Defendant to re-disposition the previous application for permission according to the purport of the final and conclusive judgment. On April 17, 2014, the Defendant received a decision of partial acceptance that “if the Defendant did not re-consume the amount according to the final and conclusive judgment, he would pay KRW 3,00,000 per day until the time of the disposition.” Accordingly, the Defendant filed an appeal with Seoul High Court 2014No115, but the Defendant was dismissed on May 26, 2014, and the said decision became final and conclusive as is.

D. On June 17, 2014, the Defendant: (a) abolished the public notice of the aforementioned placement plan on the ground that the Plaintiff and the Defendant made a third non-permission disposition against the Plaintiff on the ground that the order of indirect compulsory enforcement against the Plaintiff became final and conclusive; (b) on September 5, 2014, granting permission to file an application for permission for a liquefied petroleum gas charging business; and (c) on the same day, the Plaintiff is less than five kilometers in the same direction on the ground that the distance between the construction site for light energy treated as the permission and the Plaintiff’s project site is less than five kilometers in the same direction; and (d) granted the third non-permission disposition denying the Plaintiff’s instant application in accordance with Article 7 of the Enforcement Rule of the Development Restriction Zone Act (hereinafter referred to as “disposition on September 5, 2014”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9 (the evidence No. 17 is part of Gap evidence No. 6), Eul evidence Nos. 1 through 3, the purport of the whole pleadings

2. If an administrative disposition was revoked on May 7, 2014 regarding the part seeking revocation of the previous administrative disposition among the instant lawsuits, the disposition becomes null and void, and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 20045317, Sept. 28, 2006). If an administrative agency again takes the same administrative disposition with due process or form as to the administrative disposition null and void due to procedural defect, then the claim for confirmation of invalidity of the previous administrative disposition is merely a dispute over the validity of the past legal relationship, and there is no benefit of seeking confirmation of invalidity (see, e.g., Supreme Court Decision 2006Du3933, Sept. 28, 2006).

위와 같은 빕리에 비추어 이 샤건 소 중 2014. 5. 7.자 저분의 취소를 구하는 부분의 적법 여부에 관하여 보건대, 위 인정사실에 의하면, 파고는 2014. 5. 7. 원고에 대하여 이 사건 신청을 불허하는 취지의 처분을 하였으나, 서울고등법원으로부터 위 처분이 종전 확정판결의 기속력에 반하여 당연무효이기 때문에 여전히 원고에 대하여 재처분 의무를 부담한다는 취지의 항고기각결정을 받고, 위 결정의 취지에 따라 2014. 9. 5. 동일한 이 사건 신청에 대하여 새로운 사유를 들어 다시 불허가 처분을 하였으므로, 이는 위 간접강제결정 취지에 따라 이 사건 신청에 대하여 전에 이루어진 처분을 직권취소하고 새로운 처분을 한 경우에 해당한다고 할 것인바, 결국 원고가 2014. 5. 7.자 처분에 대한 취소를 구하는 것은 더 이상 존재하지 않는 과거의 법률관계의 효력을 다투는 것에 불과하므로 이를 다툴 소의 이익이 없다고 할 것이다. 따라서 이 사건 소중 2014. 5. 7.자 처분의 취소를 구하는 부문은 부적법하다.

3. Whether a disposition issued on September 5, 2014 (hereinafter referred to as “instant disposition”) is lawful

A. The plaintiff's assertion

1) Non-existence of disposition grounds and illegality of alteration of disposition grounds

At the time of the instant disposition, the Defendant stated that the distance between the light energy project site processed with the permission and the Plaintiff’s project site is less than 5§¯ in the same direction at the time of the instant disposition. In the instant lawsuit, the Defendant changed the ground for disposition on the ground that “In the instant lawsuit, it does not constitute a case where the head of the Gu considers it necessary to install charging stations in an adjacent area, although the area is not a development restriction zone, in which the light energy project site and the Plaintiff’s project site are not a development restriction zone, based on the proviso of subparagraph 2-2 (b) of Article 7 of the Enforcement Rule of the Development Restriction Zone Act.” This constitutes an addition of new statutes and the grounds for disposition, and as the existing grounds for disposition cannot be maintained, the instant disposition is unlawful.

2) A deviation from or abuse of discretionary power

The defendant filed an application for permission first without reasonable grounds, based on the incidental circumstances such as filing a lawsuit first and receiving a decision of indirect compulsory enforcement, etc. On the other hand, the defendant filed a revocation lawsuit on the previous water-permission portion and the judgment in favor of the plaintiff was final and conclusive and the obligation of re-disposition was generated, not only in the legal position equivalent to the ordinary energy but also in the position equivalent to the ordinary energy, but also in the case where the plaintiff who is superior to the ordinary energy under various conditions compared to the ordinary energy due to the conditions of the charging station project site, was denied the application of this case. This is illegal as a deviation and abuse of discretionary power.

(b) Related statutes;

Attached Table 1 shall be as stated in the relevant statutes.

1) From around 1975, the Plaintiff resided in Nam-gu Incheon Metropolitan City, a development-restricted zone D, and resided at the time of designation of the said development-restricted zone, and light energy is a person who operated a filling station of liquefied petroleum gas for automobiles in the Bupyeong-gu Incheon Metropolitan City.

2) The Plaintiff: (a) determined Yeonsu-gu Incheon Metropolitan City C, E, F, and G as the Plaintiff’s business site and filed the instant application with the Defendant; (b) acquired the ownership of each of the above lands on December 5, 2013 and February 13, 2014; (c) the total area of the land site for light energy projects and the development restriction zone in Yeonsu-gu where the Plaintiff’s business site belongs is 0.73mm in total; (c) the distance between each of the above business sites is 0.8m in width; and (d) the development restriction zone was partially released and 237 persons (10m in total, 06m in area, and Class 1 general residential area) are located (see attached Form 2);

4) On September 5, 2014, the Defendant rendered a comprehensive deliberation through legal advice, urban planning, regional economy, civil petition cadastral department, cultural and sports department, environmental preservation department, park and green space department, construction department, home welfare department, fire station, education support office, and Incheon Transport Corporation, etc., through an external attorney-at-law, prior to rendering each disposition of the Plaintiff and the light energy. According to the contents of the deliberation above, the Defendant determined that the light energy was insufficient to submit a written consent for land use, and that the Plaintiff satisfied all the remaining requirements for the installation of a charging station except for each issue exceeding the statutory standards. ② In light of legal advice and relevant statutes, the Plaintiff filed an application first to the Plaintiff, and submitted a written consent for land use to the light energy to which the judgment was rendered in favor of the Plaintiff in the administrative litigation, it was inappropriate to make a decision by examining each of the requirements prescribed in Article 7 subparagraph 22-2(b) of the Enforcement Rule of the Development Restriction Zone Act.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 10, Eul evidence Nos. 4 to 20, and 25 (including the pertinent numbers), the purport of the whole pleadings

D. Determination

1) Determination on the first argument

Article 12 (1) 1 (e) of the Act on Special Measures for Designation and Management of Development Restriction Zones, Article 13 (1) [Attachment 1] 5 (e) [Attachment 1] 5 (e) [Attachment 1] 10] of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Presidential Decree No. 25774, Nov. 24, 2014; hereinafter “Enforcement Decree of the Development Restriction Zones”) are delegated to establish installation standards for placement plans, such as the distance between facilities of liquefied petroleum gas charging stations for automobiles, in principle, under subparagraphs 2 and 2-2 of Article 7 of the Enforcement Rule of the Development Restriction Zones Act, the interval between charging stations for automobiles shall be by the same direction, and at least 5 km (where there is an area other than a development restriction zone for liquefied petroleum gas charging stations for automobiles, only a road distance located within a development restriction zone shall be added to the two restricted zones). (2) Where the head of a Si/Gun/Gu determines that the distance between the areas under subparagraph 2 (a) and subparagraph 2 (b) is necessary.

In light of the contents and structure of the above provision, even if there is an area which is not a development restriction zone between the health zone, light energy zone and the Plaintiff’s business site, if the defendant, who is the head of the Gu having jurisdiction over the relevant area, did not meet all the exception requirements prescribed in the main sentence and proviso of subparagraph 2-2 (b) and the above proviso, and thus, in principle, the provision on the distance distance restriction under subparagraph 2 is applied. According to the above facts, the defendant's disposition of this case after going through the above determination process, it appears that the disposition of this case is the reason for the disposition of this case, and it appears that the above provision on the distance distance restriction under subparagraph 2 (not less than 5 km in the same direction between the shock site and the Plaintiff’s business site is indicated. However, in the process of this case, since the defendant did not meet the proviso on the plaintiff’s assertion on the application of the above exception provision, the defendant's assertion that the exception provision should be applied cannot be viewed as a "new ground for disposition" or an additional ground for disposition.

2) Determination on the second argument

A) Article 12(1)1(e) of the Development Restriction Zone Act provides that "a building, etc. may not be constructed in a development restriction zone as a matter of principle within a development restriction zone, but a building prescribed by Presidential Decree as a facility for residential, living convenience, and living of residents in a development restriction zone may be constructed with permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu." Article 13(1) [Attachment 1] [Attachment 5] 5(e)(10) of the Enforcement Decree of the Development Restriction Zone Act, and Article 7 of the Enforcement Rule of the Development Restriction Zone Act provides that "only where a building is constructed on the main road, such as national highways, local roads, etc. where damage to the development restriction zone can be minimized, it may be permitted to install a

In addition, Article 3 (1) of the Safety Control and Business of Liquefied Petroleum Gas Act provides that "any person who intends to operate a liquefied petroleum gas charging business shall obtain permission from the Special Self-Governing City Mayor, the Special Self-Governing Province Governor, the head of a Si/Gun/Gu, or the head of a Si/Gun/Gu at each place of business," and Article 4 (1) provides that "where it is deemed that the establishment of the relevant facility is prohibited in consideration of the commencement or change of business and prevention of harm to people's lives and property, road connection, urban planning, population concentration, etc. (Article 1), or where it is in violation of restrictions under other Acts and subordinate statutes (Article 3 (1) 6), etc. shall be permitted in the

Considering the above contents of the relevant laws and regulations, the installation of charging stations at the time of the charging zone is prohibited in principle, but exceptionally, it is possible by the permission for the charging station business, and the criteria or requirements for the permission are prescribed as indefinite concepts, and thus, the discretionary authority is granted to the administrative agency in determining the amount of permission. Therefore, the defendant, who is the permitting authority, may decide whether to determine whether to meet the requirements of each of the above Acts and subordinate statutes within the legal limits of the discretion depending on the public interest and unity of purpose. Furthermore, the judgment of the administrative agency on such determination cannot be deemed to constitute deviation or abuse of discretionary authority unless it falls under misconception of facts, violation of the principle of proportionality and equality, and violation of purpose.

B) In light of the following circumstances acknowledged by the evidence and the facts of recognition as seen earlier, the permission disposition for light energy is legitimate for all of the persons meeting the relevant requirements, and the Plaintiff has a superior condition to light energy, or the Plaintiff does not recognize the necessity of establishing two charging stations, and thus, it seems that the Defendant, who is the permitting authority, appropriately reviewed and decided the requirements of the relevant Acts and subordinate statutes within the scope of its discretion depending on the public interest and unity of purpose. Thus, the Plaintiff’s assertion is without merit. (1) According to Article 13(1) [Attachment 1] 5(e)10 of the Enforcement Decree of the Development Restriction Zone Act, the Plaintiff’s assertion is without merit. (3) The Plaintiff constitutes a resident at the time of designation of a development restriction zone, and the Plaintiff is a resident at the time of designation of a development restriction zone, and only a business operator who installs a filling station within a development restriction zone after relocating a liquefied petroleum gas filling station in a downtown.

(2) Article 13 of the Enforcement Decree of the Development Restriction Zone Act does not limit the scope of the area to be relocated or lost in the case of a person who installs a filling station in a downtown. In light of the purport of Article 13 of the Enforcement Decree of the Development Restriction Zone Act to secure the safe living environment, smooth traffic, urban landscape, etc. of a downtown where population, etc. are concentrated, even if a filling station is operated in a downtown which is not located in the defendant's premises, such as light energy, the defendant's premises may transfer or install a filling station in a city located in another district, which is located in the development restriction zone, as a part of the defendant's premises. In this case, it is desirable for the person who installs a new filling station to remove the existing filling station at least prior to the approval for the use of a new filling station. Therefore, it cannot be deemed that the permission disposition itself is unfair on the ground that the previous filling station in light of the fact that it was located in another district

(3) In light of the contents and purport of the above provision, if a person is eligible to install a charging station in a development-restricted zone, the requirement cannot be deemed to be superior to other requirements, and the charging station operator is not necessarily required to be the owner of the relevant project site. Thus, there is no basis for the Plaintiff to priority in the selection criteria compared to the former installer at the time of designating the development-restricted zone, and there is no other evidence submitted by the Plaintiff regarding location conditions, such as traffic volume and accessibility, it is insufficient to view that the Plaintiff’s project site is superior to the ordinary energy project site.

(4) On February 2010, the time of filing an application for permission for light energy business. The time of filing the application by the Plaintiff is around February 2013. Considering the fact that each of the previous non-permission dispositions by the Defendant was grounds for both unlawful disposal and the purport of the previous final and conclusive judgment on light energy, if the Defendant had lawfully examined the application for light energy that meets all the requirements under the Development Restriction Zone Act and the relevant Acts and subordinate statutes, it appears that the Defendant first issued permission for light energy. In this case, the Plaintiff who filed an application after the three-year period is deemed to have equally applied the restriction provisions on the distance from the site for light energy business. Accordingly, it cannot be deemed that there is no reasonable reason to give permission to light energy that has already been applied for business permission at a reasonable intervals, or that there is no particular reason to deem it to be unfair.

(5) As the Plaintiff filed an administrative litigation against the Defendant’s previous non-permission disposition identical to the ordinary energy, the Defendant is obliged to take the duty of re-disposition in accordance with the purport of the above final judgment. However, the Defendant does not necessarily have to take the above re-permission disposition against the Plaintiff, and even in this case, the Defendant may take the disposition of non-permission on the ground of a new ground that it occurred after the previous disposition. Since the application of the permission disposition to the width and the provision on the distance restriction between charging stations is a new ground different from the original disposition, the non-permission disposition against the Plaintiff on September 4, 2014 does not go against the binding force of the previous final judgment against the Plaintiff.

(6) Taking into account the legislative intent of the Development Restriction Zone Act with the aim of preventing any disorderly expansion of cities and ensuring the healthy living environment for urban citizens by preserving the natural environment surrounding the city, installation of charging stations in development restriction zones is, in principle, restricted, and exceptionally permitted only if certain requirements are met. In order to recognize exceptions to the requirements for limiting the distance under the Development Restriction Zone Act, the defendant who is the head of the relevant Gu must recognize the necessity of installation in accordance with the above exceptional provisions. The evidence submitted by the plaintiff does not necessarily prove the need for installation of more than two charging stations within the development restriction zone in which both ordinary energy and the plaintiff's project site belong. Rather, the area of the development restriction zone itself to which each project site belongs is narrow, and the distance between the project site is merely about 800 meters, and the residential area is residing in the middle, it is unreasonable to deem that the defendant does not recognize the necessity of installation of filling stations and to make the disposition of this case differently by applying the principle of distance limitation.

4. Conclusion

Therefore, the part of the lawsuit in this case that the defendant seeks revocation of the disposition of non-permission to charge liquefied petroleum gas, which was made against the plaintiff on May 7, 2014, is unlawful, and thus, it is dismissed. The remaining claims of the plaintiff are dismissed as it is without merit, and it is so decided