2010Guhap34. Invalidity of the change in absolute conservation area

2010Guhap218(Joint) Governing invalidity, etc. of a disposition of absolute change in the conservation area

1. 00 village societies:

Seogpo-si, Seopo-dong**

Representative Chairman Senior 00

2. High 00 (42*********)

Seogpo-si, Seopo-dong**

3. Quantities00 (59********)*

Seogpo-si, Seopo-dong***-*

[Defendant-Appellant] Plaintiff 1 and 3 others

The plaintiffs' attorney Lee Jae-soo et al.

Gangwon00 (57**********)*

Seogpo-si, Seopo-dong**

Jeju Special Self-Governing Province Governor

The inspection of the litigation performer, the nature of the public-service advocate's stay;

Gangwon**, present*, this**,*

Attorney Dok-do et al.

November 17, 2010

December 15, 2010

1. All of the lawsuits filed by the plaintiffs (appointed parties) and the plaintiffs are dismissed.

2. The costs of lawsuit are assessed against the Plaintiff (Appointed Party) and the Plaintiffs.

At the end, the change in the absolute conservation area made by the Defendant on December 23, 2009 at the coast of Seopo-si, Seopo-si, Seopo-si, Seopo-si on December 23, 2009 is invalid. Preliminaryly, the above disposition is revoked.

1. Details of the disposition;

A. On September 22, 2009, the Navy headquarters requested the Defendant to cancel the designation of an absolute conservation area with respect to the size of 105,295 square meters in Seopo-si, Seopo-si, Seopo-si, Seopo-si, the absolute conservation area among the land subject to the project plan.

B. Accordingly, with the consent of the Do Council on December 23, 2009, the Defendant changed the absolute conservation area at 105,295 meters of the square meters of Seopo-si, Seopo-si, Seopo-si, Seopo-si, Seopo-si, 826,194m, which was designated as an absolute conservation area (hereinafter “instant disposition”). The Defendant publicly announced the change (hereinafter “instant disposition”).

[Reasons for Recognition] Evidence No. 2, Evidence No. 2-1, 2-2, the purport of the whole pleadings

2. The parties' assertion

The plaintiff (Appointed Party) and the plaintiffs (hereinafter referred to as "the plaintiffs") stated that the disposition of this case was ① without hearing the residents' opinions prior to the disposition, ② the consent of the Do Council only includes defects in violation of the rules on agenda deliberation, voting method, violation of the principle of absence in the procedure, and ③ the designation and change of absolute conservation area and the procedure prescribed by the Ordinance on the Management of Jeju Special Self-Governing Province, and ④ the opposition of the residents of Gangseo-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si-si, which form a red processed house, which is the second grade animal of endangered species, and the location of river, Seocheon-do-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si-si and thus, the disposition of this case does not directly affect the natural environment of this case and thus, the disposition of this case does not constitute an unlawful disposition of this case.

3. Whether the lawsuit in this case is lawful

(a) Profits legally protected;

First of all, the defendant's main defense is examined as to the defendant's main defense, and even if a third party is not the direct counter party of the administrative disposition, if the legal interests protected by the administrative disposition are infringed by the law, it shall be entitled to a judgment of the propriety thereof by filing an administrative lawsuit seeking a nullity of the administrative disposition. The legal interests here refer to the cases where there are individual, direct and specific interests protected by the laws and regulations of the disposition concerned and relevant laws and regulations, and in cases where there are common, indirect and abstract interests of the general public as a result of the protection of public interests, there is no legal interests protected by the law (see, e.g., Supreme Court Decisions 94Nu14230, Jun. 30, 1995; 2003Du2175, Aug. 16, 2004); and there are legal interests protected by the plaintiffs seeking a nullity or revocation of the disposition of this case.

B. Relevant statutes

Article 291 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (amended by Act No. 9795, Oct. 9, 2009)

(1) Jeju Self-Governing Province shall ensure environmentally sound and sustainable development in formulating and implementing policies and plans, and preserve and manage the natural environment so that residents can share benefits from the natural environment, at the same time, so that the future generations can have equal opportunities and use the nature.

(2) Jeju Self-Governing Province shall endeavor to establish and implement a basic environmental ordinance and a main plan for environmental conservation, including the following matters, in order to conserve and manage the natural environment systematically and to enable residents to lead a pleasant and healthy life in a comfortable natural environment:

1. Objectives and direction-setting for environmental preservation;

2. Analysis of regional environmental characteristics and future prospects;

3. A plan for conservation and restoration of the natural environment and ecosystems;

4. Matters concerning the conservation and management of urban and natural scenery;

5. Management of the Jeju Self-Governing Provincial Organism Conservation Area designated by UNESCO;

(3) The Governor shall actively endeavor to promote cooperation and exchange between the station of biological sphere conservation area in order to systematically preserve and manage the biological sphere conservation area of Jeju Self-Governing Province designated by the UNESCO, and shall manage it as prescribed by Provincial Ordinance.

(4) In order to continue environmentally sustainable development, the Governor shall endeavor to establish and implement practical tasks, etc. containing the basic values and ideas that the whole local community shall share.

Article 292 (Absolute Conservation Area) (1) The Do governor may designate an area which falls under any of the following subparagraphs, with the consent of the Do Council, as an area for the protection of high-liability characteristics of the natural environment (hereinafter referred to as an "Absolute Conservation Area"). Amendments thereto shall also be subject to the consent of the Do Council:

1. An area with excellent natural scenery, such as Hanrasan, parasitic volcanic volcano systems, rivers, lakes, lakes, marshes, islands, coastal areas, lava minings, etc.;

3. The habitats or migratory areas of wild animals;

4. Natural forest areas which are ecologically important; 5. Other areas prescribed by Provincial Ordinance for the conservation of the natural environment.

(2) Where the Governor designates or alters an absolute conservation zone under paragraph (1), he/she shall publicly announce such designation or alteration without delay, as prescribed by Provincial Ordinance.

Article 2 of the Ordinance on the Management of Jeju Special Self-Governing Province (Amended by Ordinance No. 597, Jan. 6, 2010);

(1) The standards for the designation of relative conservation zones and management conservation zones (hereinafter referred to as " conservation zones") shall be as follows:

1. The criteria for the designation of an absolute conservation zone under Article 292 of the Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (hereinafter referred to as the "Act") shall be Class 1 groundwater resources ecosystem and landscape conservation zone (hereinafter referred to as " conservation zone") specified in attached Table 1 of the standards for designation of ratings

Article 3 (Hearing Opinions from Residents, etc.)

(1) When the Governor intends to designate (including modification) a conservation area, district, etc. under Articles 292 through 294 of the Act, he/she shall hear the residents' opinions: Provided, That the same shall not apply to any modification to any of the following minor matters:

1. Reduction of conservation areas, districts, etc.;

2. It shall be increased by up to 100/100 of the area of a conservation area, district, etc.: Provided, That the plate shall be limited;

As to the defendant's main safety defense, the defendant's disposition in this case and the approval disposition of the Minister of National Defense's implementation plan for the national defense and military installations project was made during a series of processes for the construction of the Jeju Navy base. The plaintiff 00 village council is a non-legal group consisting of residents in the Seopo-si, Seopo-si, Seopo-si, and the plaintiff 00 and the designated parties are the owners of the land in Seopo-si, Seopo-si, or the lessee of the land in the Dongpo-dong, and are residents of Seopo-si, Seopo-si, Seopo-si, which is the residents of Seopo-si, who reside in Seopo-si. Thus, the plaintiff 1 is also entitled to dispute over the disposition in this case. However, although the defendant's disposition in this case is conducted on the premise for the approval disposition of the national defense and military installations project by the Minister of National Defense, it is a separate administrative disposition from the above approval disposition as well as the procedure of dispute about the administrative disposition in the next case.

In light of the above provisions, the Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (amended by Act No. 9795, Oct. 9, 2009) and the former Ordinance on the Management of Jeju Special Self-Governing Province (amended by Ordinance No. 597, Jan. 6, 2010) ensure that environmental sound and sustainable development takes place. The benefit of the natural environment is to be shared by the residents, and at the same time, the basic direction of conservation and management is to enable them to use nature with equal opportunities, and it is to be protected as an absolute conservation area in accordance with the protection of each of the above provisions, not an absolute conservation area, but an implementation of the project affecting the living environment of neighboring residents, and the installation of facilities themselves. ② The former Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (amended by Ordinance No. 9795, Oct. 9, 200) and the former Ordinance on the Management of Jeju Special Self-Governing Province (amended by Ordinance No. 597, etc.).

Furthermore, since the right to life, the right to pursue happiness, and the right to environment under the Constitution asserted by the plaintiffs alone cannot be deemed to be specifically established, the subject, object, and method of exercising the right to life, the right to pursue happiness, and the right to environment, the plaintiffs cannot be deemed to have standing to sue the disposition of this case based on the right to life, the right to pursue happiness, and the right to environment (Supreme Court en banc Decision 2006Du

4. In conclusion, the plaintiffs do not have any legal interest in seeking nullification or revocation of the disposition of this case, and therefore, the plaintiffs' lawsuit of this case is unlawful and thus, they are dismissed without further determination as to the merits. It is so decided as per Disposition.

The presiding judge, Judge Park Jae-in

Judges Kim Gin-tae

Judges Park So-young