(영문) 서울고등법원 2015.11.3. 선고 2015누52007 판결

The decision of the first instance court is revoked. On April 1, 2014, the Defendant revoked the approval of the execution plan and the designation of the electric source development project area to the Defendant joining the Defendant on electric source development project (154ky Bridge 154ky Construction Project), which was conducted against the Defendant joining the Defendant.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the first instance judgment, except for the addition of the judgment on the plaintiff’s argument under Paragraph (2) below, and therefore, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

2. Judgment on the Plaintiff’s assertion of the trial

A. The plaintiff's assertion

1) Since the instant disposition has a significant impact on the Plaintiff’s exercise of the Plaintiff’s property right, the Defendant, prior to rendering the instant disposition, notified the Plaintiff of the fact, content, legal basis, etc. of the disposition in advance pursuant to Article 21(1) of the Administrative Procedures Act, and provided an opportunity to submit opinions. However, there is an error

2) The intervenor and the petition head of the Si/Gun did not provide local residents with an opportunity to submit their opinions because they did not keep a written opinion form at the place of inspection of the project implementation plan of this case, and did not properly prepare a written review of opinions submitted by residents at the residents' briefing session and did not comply with the procedures for hearing opinions of local residents, etc. under Article 5-2

3) The intervenor is bound by the instant selection criteria, which are internal guidelines, in selecting the passing point of transmission lines. The developments leading up to the selection of the selection advisory committee members in accordance with the selection criteria of this case are unclear, and some villages violate the selection criteria of this case, such as not holding resident briefing sessions.

4) The Si/Gun company having jurisdiction over the instant project shall publicly announce the copy of the instant project implementation plan forwarded by the Defendant pursuant to Article 17(1) of the Enforcement Decree of the Electric Power Source Development Promotion Act, and shall notify the Plaintiff, who is the landowner, in spite of the duty to notify the details of the announcement, and the Defendant, a central administrative agency, is in violation of the law of not

5) In the instant project, there is a doubt as to whether the need for the instant project is recognized as being the case’s supply of stable electricity in the petition and Cheongju, etc., which the Intervenor inside, without considering the safety of transmission lines and transmission towers due to the blasting work for the gathering of earth and rocks, and the protection of natural ecosystem, etc., the Defendant selected the passing date of the instant transmission line without considering the safety of transmission lines and transmission towers due to the Plaintiff’s gathering of earth and rocks; more economically efficient in securing other two candidates’ passages length, construction cost, construction entry, etc. compared to the passing date of the instant transmission line; and the Plaintiff, who is planning to develop the land of the instant stone collection place as a stone collection complex in the future, suffers enormous property damage due to the instant project, and is more likely to infringe upon the Plaintiff’s private interest than the public interest derived from the instant project, the instant disposition is deemed to have been abused by discretion.

B. Determination

1) Determination on the first argument

Article 2 subparag. 4 (a) of the Administrative Procedures Act provides that "party" shall be "a person who directly becomes the party to the disposition of the administrative agency". However, the instant disposition is a kind of administrative plan, which is set in accordance with the relevant Acts and subordinate statutes, such as the period and zone for the execution of electric power resource development business for the installation of transmission lines and transmission towers, and the type, location, size, etc. of facilities installed, and it cannot be deemed that the disposition itself affects the Plaintiff's exercise of property rights, such as the use or expropriation of the land owned by the Plaintiff. Therefore, the Plaintiff cannot be deemed the party to the instant disposition. Accordingly, this part of the allegation on the premise that the Plaintiff falls under the party to the instant disposition is without merit.

2) Determination on the second argument

According to the evidence Nos. 3, 5, 24, and 4-1 of evidence Nos. 4, the petition Gun had local residents peruse the project implementation plan of this case within a fixed period from May 29, 2012 to June 15, 2012, and had them keep the forms of opinions in the Gun Office of the petitioner, the Gun Office of the present drawing, and the Myeon Office, which are the public perusal place, in order to gather opinions. The intervenor did not hear the opinions of the petitioner from June 5, 2012 to June 11, 2012, and the petitioner held a resident briefing meeting against the resident of the present drawing and gathered the opinions of the resident; the petition Gun did not state that "no resident inspection or opinion is presented about the project implementation plan" around June 22, 2012, and the intervenor did not hear the opinions of the resident and the head of the Gun, or did not keep the written opinion of the resident under Article 5 of the Electric Source Development Promotion Act.

3) Judgment on the third argument

According to the evidence No. 6, the intervenor organized a transitional selection advisory committee with only one person who has a territorial power as the chairperson, representative of residents, local experts, and the employees of the intervenor as the members of the local government head, academic circles, press circles, and regions, and finally selected the expiration date of the transmission line of this case through a four-time meeting of the advisory committee and a resident presentation for nearby village residents. On the other hand, there is no evidence suggesting that the intervenor selected a member of the advisory committee on the selection of the expiration date or failed to undergo a resident presentation in violation of the selection criteria of this case. Accordingly, this part of the allegation is without merit.

4) Judgment on the fourth argument

Article 16 (2) of the Enforcement Decree of the Electric Power Source Development Promotion Act provides that "the Minister of Trade, Industry and Energy shall send a copy of the implementation plan to the head of the relevant central administrative agency and the relevant Si/Gun/Gu without delay when he/she publicly announces the approval of the implementation plan for the electric power resource development business, and Article 17 (1) provides that "where the competent Si/Gun/Gu receives a copy of the implementation plan under Article 16 (2), he/she shall publicly announce the matters under Article 16 (1) 1 (title of the Electric Power Source Development Business), 2 (name and address of the operator of the electric power resource development business), and 5 (location and size of the electric power resource development business area) without delay, and notify the landowner and interested parties of the details of the announcement." However, each of the above provisions is merely a provision concerning the follow-up procedure to be taken by the defendant, the competent Mayor/Do Governor, etc.

5) Judgment on the fifth argument

A) Administrative plans refer to the activity standards or the establishment of such standards established to realize order at a certain point in the future by integrating and coordinating administrative means relating to the basis of professional and technical judgments regarding administration to achieve a specific administrative objective. An administrative entity has relatively broad freedom in determining a specific administrative plan.

However, given that the freedom of formation of an administrative body cannot be deemed unlimited, and there is a limitation that the interests of relevant persons should be fairly compared and compared not only between public and private interests, but also between public and private interests. Thus, in a case where an administrative body completely fails to implement a balance of interests or omits matters to be included in the subject of consideration of a balance of interests when formulating an administrative plan, or where there is lack of legitimacy and objectivity even though a balance of interests was imposed, the decision on the administrative plan may be deemed unlawful on the grounds that there is a defect in the balance of interests (see Supreme Court Decision 2012Du2467, Jul. 10, 2014).

B) According to the above legal principles, the Plaintiff’s 3, 6, 21 evidence 2, 3, and 22 were deemed to have been disposed of by the following facts: (i) the current 354kV petition terminals were limited to satisfy the demand for electricity due to the rapid increase of electricity demand due to the construction of the government-type office buildings and the multifunctional administrative city; (ii) it was difficult for the Intervenor to gather and gather new soil and rocks at the 354 km point of view that there was no possibility that the land would have been disposed of by the 354 km point of view as well as the progress of the 154 km point of view that there was no possibility that the Plaintiff would have been able to share the remaining power parts of the 354 km point of view for the stable supply of electricity in the above area; and (iii) it would be difficult for the Intervenor to select new facilities for the purpose of installing the 154 km point of view and new facilities for the purpose of installing the 3rd point of view.

3. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.