(영문) 인천지방법원 2015.1.22.선고 2014구합32381 판결

The Defendant’s disposition of permission for the filling business of liquefied petroleum gas against the Intervenor to the Intervenor (hereinafter “ Intervenor”) on September 5, 2014 is revoked.

Reasons

1. Details of the disposition;

(a) Application for permission for the filling business of the intervenor and the plaintiff, non-permission disposition and the progress of administrative litigation;

1) On February 2, 2010, the Intervenor filed an application for permission for a liquefied petroleum gas filling business (hereinafter “instant application”) with respect to the Plaintiff’s land B and two parcels located within the development-restricted zone, Yeonsu-gu, Incheon, and the Defendant (hereinafter “ Intervenor’s project site”). Accordingly, on March 5, 2010, the Defendant rendered the first non-permission disposition rejecting the instant application on the grounds that the Defendant, on the ground that “the Plaintiff, installed in the development-restricted zone with respect to the Intervenor, on the ground that the Plaintiff was installed on the main road in accordance with the arrangement plan established by the head of the Si/Gun/Gu. However, on the ground that the training-gu, Incheon, would not have formulated the placement plan and did not permit the Intervenor’s filling business.”

2) The intervenor filed an administrative litigation seeking the revocation of the first non-permission disposition with the Incheon District Court Decision 2010Gu, 1570, August 26, 2010, but the Seoul High Court appealed from 2010-3003 and decided on April 12, 201, the issue of whether to grant permission for the business of filling liquefied petroleum gas within a development restriction zone was not established by a plan for placement, but was determined based on the following grounds: (a) whether it conforms to the provisions and intent of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter referred to as the "Development Restriction Zone Act") and relevant Acts and subordinate statutes, which present the general guidelines for establishing a plan for placement, and (b) it is not possible to deny the establishment of a plan for placement; (c) the defendant appealed the above cited judgment by Supreme Court Decision 2011Du9768, Oct. 13, 2011.

3) The Defendant issued a second non-permission disposition rejecting the instant application on November 16, 201 in accordance with the foregoing final judgment revoking the first non-permission disposition on November 16, 201, where the distance under subparagraph 2 is secured for each Si/Gun/Gu within a development restriction zone under the proviso of 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 “Enforcement Rule of the Development Restriction Zones”) means where the distance of roads passing through a development restriction zone within 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 liquefied petroleum gas charging station for automobiles. The Intervenor’s business site did not secure the distance of roads passing through a development restriction zone within the Yeonsu-gu Incheon Metropolitan City, Incheon Metropolitan City.

4) Accordingly, the intervenor filed an administrative litigation seeking the revocation of the second non-permission disposition by filing an administrative lawsuit with the Incheon District Court 2012Guhap793. On October 19, 2012, the above court held that the proviso of Article 7 subparagraph 2-2 (a) of the Enforcement Rule of the Development Restriction Zones of the Act on the Development Restriction Zones should be interpreted to mean that the distance between the charging stations should not be less than 5 meters when installing a liquefied petroleum gas charging station in the relevant Si/Gun/Gu, and thus, the above provision cannot be denied. Accordingly, the defendant appealed with the Seoul High Court 2012Nu35674 on April 24, 2013, but filed an appeal with the Seoul High Court 2013Du10311, but the plaintiff did not request the revocation of the second non-permission disposition on September 12, 2013, and the plaintiff did not request the revocation of the second non-permission disposition on the ground that the plaintiff's second non-permission disposition on the land was within the Seoul High Court 202.

6) On February 12, 2014, the Defendant notified the Intervenor and the Plaintiff that “the Defendant would apply again for business permission as the Defendant is in the process of formulating the placement plan.” On April 14, 2014, the “plan for and standards for the placement of a liquefied petroleum gas charging station for automobiles in the Yeonsu-gu Incheon Metropolitan City development restriction zone” was publicly notified, and on April 28, 2014, the “the receipt and criteria for the selection of applicants for the selection of a liquefied petroleum gas charging station for automobiles in the Yeonsu-gu Incheon Metropolitan City development restriction zone” was publicly notified, and on May 7, 2014, the change in the criteria for selection was publicly notified.

7) On May 7, 2014, the Defendant: (a) rendered a third non-permission disposition rejecting the instant application to the effect that the Intervenor’s project site was prior to a plan for placement pursuant to the Development Restriction Zone Act; (b) as such, the Intervenor’s project site should be prior to a development restriction zone; and (c) accordingly, the instant application filed prior to a plan for placement was non-permission; and (d) the Defendant rendered the second non-permission disposition denying the Plaintiff’s application to the same effect.

8) Meanwhile, on March 11, 2014, the intervenor filed an application with the Incheon District Court 2014.2079, for indirect compulsory enforcement with the purport of the above final judgment revoking the second non-permission disposition with the Defendant, and on April 17, 2014, the Defendant paid KRW 3,000,000 per day to the date of the disposition where the second non-permission disposition was not made pursuant to the above final judgment. Accordingly, the Defendant filed an appeal with the Seoul High Court 2015, but the said decision was final and conclusive on May 26, 2014 (in the above case of the second non-permission disposition, the Defendant asserted that the third non-permission disposition was re-disposition in accordance with the final and conclusive judgment, but the said third non-permission disposition conflicts with the binding force of the previous final and conclusive judgment, and thus, the court determined that the Defendant was liable to invalidate the said final and conclusive judgment and thus, the said third non-permission disposition was null and void).

9) Meanwhile, on February 4, 2014, the Plaintiff filed an application for indirect compulsory enforcement with the Incheon District Court 201403 to compel the Defendant to make a second disposition on the previous application in accordance with the purport of the final and conclusive judgment. On May 2, 2014, the Defendant received a decision of acceptance that “if the Defendant did not make a second disposition in accordance with the said final and conclusive judgment, it would pay KRW 2,00,000 per day until the time of the disposition.” Accordingly, the Defendant filed an appeal with the Seoul High Court for this reason, but the Defendant was dismissed on May 29, 2014, and the said decision became final and conclusive as is.

B. On June 17, 2014, the Defendant’s disposition of permission to file the instant application with respect to the Intervenor and the Plaintiff’s non-permission disposition against the Plaintiff became final and conclusive, and subsequently abolished the aforementioned placement plan’s notification on June 17, 2014, the Intervenor rendered a disposition to permit the instant application on September 5, 2014 (hereinafter “instant permission disposition”), and on the same day, “the distance between the Intervenor’s project site subject to permission and the Plaintiff’s project site is less than 5% in the same direction.” In accordance with Article 7 of the Enforcement Rule of the Development Restriction Zone Act, the Defendant rejected the Plaintiff’s application.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Eul evidence 1 to 3, Eul evidence 6, the purport of the whole pleadings

2. Whether the instant permission disposition is lawful

A. The plaintiff's assertion

The Defendant’s disposition of this case is against the principle of due process that only the intervenor who filed an application for the permission of the filling station on the sole ground of indirect lecture decision without submitting any criteria for examination without undergoing a fair examination. The Plaintiff also has an equal position with the intervenor in that the Plaintiff won a revocation lawsuit against the Defendant’s previous non-permission disposition and received an indirect compulsory enforcement decision at a similar time. However, the Plaintiff’s disposition of this case is against the principle of equality. The Plaintiff’s disposition of this case’s permission only to the intervenors and rendered a non-permission disposition to the Plaintiff on the ground of indirect compulsory enforcement, even though the Intervenor partly changed the project site with other land at the time of the application of this case. The Plaintiff’s decision of this case’s indirect compulsory enforcement is logical contradictory, and the selection of the filling station operator should take into account various factors such as the traffic volume around the application site, the convenience of the filling station use, etc. In the selection of the filling station operator. Above all, it is not clear whether the Plaintiff is a resident within the development restriction zone, and it is superior to the Plaintiff.

(b) Related statutes;

It is as shown in the attached Form.

1) The Plaintiff was residing in Nam-gu Incheon Metropolitan City, a development-restricted zone D from around 1975, and the Plaintiff resided at the time of the designation of the development-restricted zone, and the Intervenor was operating a liquefied petroleum gas charging station for automobiles in Bupyeong-gu, Incheon.

2) On January 15, 2010, the Intervenor entered into a conditional real estate sales contract on the land B, E, and F in Yeonsu-gu Incheon, and the said land was designated as the Intervenor’s business site and filed an application for charging station business with the Defendant. However, during the period exceeding four years, the Intervenor delayed permission for the Intervenor due to relevant administrative litigation, etc., the Intervenor rescinded the sales contract on the said land around June 2013. Accordingly, on August 19, 2014, the Intervenor requested the Defendant to submit a notarized written consent for the use of the land regarding the Intervenor’s business site, the Intervenor additionally secured the G land adjacent to the FF land and filed an application for supplementation and modification of the existing application on August 19, 2014 (the Plaintiff’s land site, H, I, and J as the Plaintiff’s business site, and the Plaintiff’s total area of the instant land was 0 meters between the Plaintiff’s land owner and the Plaintiff’s land development restriction zone and the Plaintiff’s total area was 0.3m of the project site and 13m of each of the instant land.

5) On September 5, 2014, prior to rendering each disposition against the Plaintiff and the Intervenor, the Defendant comprehensively deliberated upon the legal advice, urban planning, and regional economy, civil petition and cadastral department, cultural and sports division, environmental preservation department, park and green space division, construction department, home welfare department, fire station, educational support department, and Incheon Traffic Corporation through consultation with the relevant departments. According to the contents of the above deliberation, the Defendant determined that the Intervenor submitted the written consent for land use at the deliberation stage (before the request for supplementation), 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, and submitted the written consent for land use to the Intervenor who was rendered a final judgment in favor of the Plaintiff and the Intervenor, and that the permission granted to both the Plaintiff and the Intervenor was inappropriate as a result of examining each requirement under Article 7 subparagraph 2-2 (b) of the Enforcement Rule of the Development Restriction Zone Act.

[Ground of recognition] The above evidence, Eul's statements of evidence Nos. 4 through 18, 20, and the purport of the whole pleadings is determined.

1) The nature of permission for liquefied petroleum gas filling business

Article 12 (1) 1 (e) 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 Act on Special Measures for Designation and Management of Development Restriction Zones"), Article 13 (1) [Attachment Table 1] 5 (e) (10) of the former 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 Act"), Article 7 of the Enforcement Rule of the Development Restriction Zones Act provides that "No buildings, etc. may be constructed within development restriction zones in principle, but buildings prescribed by Presidential Decree as facilities for residential, living convenience and living of residents in development restriction zones may be constructed after obtaining permission from the Governor of a Special Self-Governing Province, the head of a Si/Gun/Gu, or the head of a Si/Gun/Gu."

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, 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 the 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.

Considering the above contents of the relevant laws and regulations, the installation of charging stations in development restriction zones is prohibited in principle, but exceptionally, it is possible by the permission of charging stations, and the criteria or requirements for permission are prescribed as indefinite concepts, and thus, the discretionary authority is granted to administrative agencies in determining whether to grant permission. Therefore, the defendant, who is the permission-granting authority, may examine whether the requirements of each of the above Acts and subordinate statutes are met within the scope of its discretion depending on the public interest and unity of purpose, and decide whether to grant permission. Furthermore, the judgment of the administrative agencies in relation thereto cannot be deemed to constitute deviation from and abuse of discretionary authority unless it falls under misconception of facts

2) Whether the instant permission disposition against the Intervenor is lawful

In light of the following circumstances, the instant permission disposition against the Intervenor is legitimate as a disposition against all the relevant requirements, and unlike the instant permission disposition, it cannot be deemed that there was an error of deviation or abuse of discretion, such as violation of the due process of law or the principle of equality, as alleged by the Plaintiff. Thus, the Plaintiff’s assertion is without merit.

A) According to Article 13(1) [Attachment 1] [Attachment 1] 5-5(e)10 of the Enforcement Decree of the Development-Restricted Zone Act, an intervenor is a business operator who installs a liquefied petroleum gas filling station by relocating it in the downtown. In light of the purport of Article 13 of the above Enforcement Decree is to secure the safe living environment, smooth traffic, urban landscape, etc. in a city where population, etc. are concentrated, even if a filling station is operated in another district outside the Defendant’s premises, such as the Intervenor, it shall be deemed that the Defendant’s premises may transfer and install the filling station for liquefied petroleum gas in operation as the relevant business site located within the development-restricted zone. In this case, it is desirable for the relocating installer to remove the existing filling station prior to the application for a new filling station, but at least the approval for use of the new filling station has to be removed before the Intervenor’s previous filling station was located in another district or not closed at the time of the permission. Thus, it cannot be deemed unjust on the ground that the Intervenor’s previous disposition of permission is inappropriate.

B) On February 2010, the time of the Intervenor’s application for permission for the business of the Intervenor is around February 201, and the time of the Plaintiff’s application is around February 2013. Considering the fact that each of the Defendant’s dispositions of denial on the existing basis was based on the illegal grounds and the purport of the previous final and conclusive judgment against the Intervenor, if the Defendant had lawfully examined the Intervenor’s application that meets all the requirements under the Development Restriction Zone Act and the relevant Acts and subordinate statutes from the beginning, it appears that the Intervenor first issued the permission. In this case, the Plaintiff who filed an application after three years is deemed to have equally applied the limitation provisions on the distance from the Intervenor’s business site. Therefore, in light of the above provisions and purport, if the Plaintiff’s application constitutes a person eligible to install a charging station within a development restriction zone, it cannot be deemed that any special requirement is superior to the other requirements, and the charging business operator does not necessarily have to be the owner of the relevant business site, and there is no reason to deem the Plaintiff’s submission of the standards of access to the Plaintiff’s site.

D) Since the Plaintiff filed an administrative litigation against the Defendant’s previous non-permission disposition in the same manner as the Intervenor and received the final and conclusive judgment in favor of the Defendant, the Defendant is obliged to assume the obligation of re-disposition in accordance with the purport of the above final and conclusive judgment. However, the Defendant does not necessarily have to grant any condition to the Plaintiff, and even in this case, the Defendant may render a rejection disposition again on the ground of a new reason that occurred after the previous disposition. Since the application of the permission disposition to the Intervenor and the provision on the distance limitation between charging stations is different from the original grounds for the disposition, the non-permission disposition against the Plaintiff does not go against the binding force of the previous final and conclusive judgment against the Plaintiff.

3. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.