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(영문) 서울고등법원 2018.06.20 2017누75943
토양정밀조사명령취소
Text

1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. An order issued by the Defendant to conduct a detailed soil survey on March 2, 2016 to the Plaintiff.

Reasons

1. The reasons why this part of the disposition is used by the court is as follows: (a) except where the land “40-1005” of the first instance judgment is deemed as “40-1005 land lot”; and (b) it is identical to the reasons indicated in Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the same shall be cited as it is in accordance with the reasoning of the first instance judgment.

2. Attached Form of relevant Acts and subordinate statutes;

1. To enter the same as related Acts and subordinate statutes;

Under the following, the former Soil Environment Conservation Act (amended by Act No. 15102, Nov. 28, 2017) is “Act” and the Enforcement Decree of the Soil Environment Conservation Act is “Enforcement Decree”.

3. Whether the part of “40-1006 land” among the disposition of this case is lawful

A. The Plaintiff’s assertion 1) While rendering the instant disposition, the Defendant did not present to the Plaintiff whether the instant disposition was based on any of the subparagraphs of Article 5-3(1) of the Enforcement Decree, the grounds on which the instant disposition was determined as such, and the grounds for not disposing of to the senior responsible person. Therefore, there were errors in violation of Article 21(1)3 of the Administrative Procedures Act of violating the duty of prior notification as well as the duty of legal basis, and the duty of presentation of the reason for disposition under Article 23 of the same Act. (2) The instant disposition states that the land subject to the instant disposition is “the Han River 3 is 40-1005, Han River 405.”

Therefore, the instant disposition is unlawful because the land subject to investigation, which is the contents of the administrative disposition, is not specified.

3) On the other hand, the Plaintiff is merely an owner of 40-106 land (Article 10-4(1)4 of the Act) and the Intervenor joining the Defendant (hereinafter “ Intervenor”).

A) The person who causes soil contamination by leaking and discharging soil contaminants on the above land (Article 2(1)1 of the Act) or a person who comprehensively succeeds to the rights and obligations of such person, or the possessor and operator of the vehicle maintenance shop, which is a facility subject to the control of soil contamination, at the time of the occurrence of soil contamination on the above land (Article 2(1)2

A person responsible for purification shall be appointed.

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