(영문) 대전지방법원 2012.9.19.선고 2012구합920 판결

1. On February 13, 2012, the Defendant revoked the disposition of revocation of construction permission on a parcel of land other than Article 140-42 and two parcels, Seo-gu Daejeon-dong, Daejeon-gu, Daejeon-dong, Daejeon-dong, and the Plaintiff.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On August 26, 201, the Plaintiff obtained a construction permit (hereinafter referred to as “instant building permit”) with the following contents on the ground on the land (hereinafter referred to as “instant real estate”) from the Defendant, Seo-gu Daejeon-dong, Daejeon-dong and two parcels (hereinafter referred to as “instant real estate”).

건축용도 : 발전시설(발전소)- 구조 : 일반철골구조- 층수 : 지상 4층연면적 : 913.39m²대지면적 : 3,194m²정화조 : 오수처리시설 6m배수설비 : 오수관 D = 150m, 우수관 D = 300mm◇ 공작물 축조용도 : 굴뚝구조 : 일반철골조- 규모 : 높이 30m, 길이 5.32m x 5.43m, 면적 28.89㎡

B. On August 31, 2011, the Plaintiff obtained permission for the installation of air discharge facilities from the Defendant, and concluded a construction contract on the instant real estate surface (hereinafter “instant facility”). On February 13, 2012, the Defendant issued a disposition revoking the instant construction permission on the following grounds (hereinafter “instant disposition”).

2. At the time of deliberation by the Deliberative Committee on the Interpretation of Acts and Subordinate Statutes (No. 22, 201), there was a result of deliberation that no fuel of RPF (closed plastic solid fuels) can be used within the Taeduk Special Research and Development Zone at the time of deliberation by the Ministry of Government Legislation on the following matters:

3. In response to concerns over environmental damage, 4,000 residents opposing the moving-out opposition to the power generation facility and the commencement of construction submit a group civil petition several times, and urgings for communication between the residents and the residents, it is anticipated that it is difficult to implement the project of power generation facilities without understanding and understanding the residents at all. In particular, in the present situation, there is concern about accidents due to extreme behavior due to conflict between the residents at the time of commencement of construction and the building owner, and construction is in fact difficult.In addition, it is understood that the building permit should be inevitably cancelled because it is located at the 10,000 square meters road construction zone and the Metropolitan Special Research and Development Zone and the 10m road construction zone are expected to cause direct environmental damage in the surrounding housing and the special zone with the same impact.

D. The Plaintiff filed an administrative appeal against the instant disposition, but was dismissed on April 23, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 4 and 8 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

(1) Article 23(1) of the Administrative Procedures Act provides that " When an administrative agency takes a disposition, it shall present the basis and reasons for the disposition to the parties." The defendant committed an unlawful act that is not clearly stated in the laws and regulations based on the disposition in this case.

(2) The instant real estate is located outside the Taeduk Special Research and Development Zone, and there is no concern about direct environmental damage in the special zone, and there is no concern that the Plaintiff violated the terms and conditions of the instant building permit, and the opposition of the residents is not a ground for revocation of the building permit, and the Plaintiff purchased the project site by bringing about KRW 4.5 billion to the project implementation, and the Plaintiff has already ordered construction works of a high-fuel boiler exclusive for fuel with trust in the instant building permit. In light of the fact that the instant disposition causes damage to the Plaintiff, the Defendant’s disposition of the instant real estate is unlawful as it deviates from and abused discretion.

B. Determination

(1) As to whether Article 23(1) of the Administrative Procedures Act has been violated, Article 23(1) of the Administrative Procedures Act provides that, when an administrative agency conducts a disposition, it is a disposition that accepts all of the contents of the application as it is, in cases of simple and repetitive disposition or minor disposition where the parties are clearly aware of the grounds therefor, except in cases of urgency. Such disposition requires an administrative agency to specify the grounds for disposition as above, i.e., to ensure the legitimate disposition by carefully investigating and making a decision, and to provide the grounds for its justification, thereby allowing the administrative agency to facilitate the appeal of the other party to the disposition and to protect the trust of the interested party and guarantee procedural rights, and such disposition that violates the duty to present reasons is unlawful.

However, since the Administrative Procedures Act does not have any provision on the basis of the disposition and the degree of presentation of the reason, it is problematic whether a certain degree of entry can be lawful as a justifiable presentation under the Administrative Procedures Act. Considering that the legislative intent of Article 23(1) of the Administrative Procedures Act focuses on providing the other party to the administrative disposition with convenience in making a decision on whether to object to the other party to the administrative disposition and filing an objection rather than the efficiency and appropriateness of the administrative action, it is sufficient if the disposition was made for any reason from the other party to the disposition, and if the reason is specifically presented to the extent that it can be possible to know how to devise the right of remedy

According to the statement of evidence Nos. 3 and 4 of this case, although the grounds for disposition No. 2 through No. 4 of this case are not stated in the ground law, it is not specified in the disposition No. 2 of this case, and according to the statement No. 3 (including provisional number) of No. 2 of this case, the defendant conducted a hearing procedure related to the disposition of this case on Jan. 30, 2012, which is prior to the disposition of this case, and it is recognized that the reasons for the disposition of this case are sufficiently explained to the plaintiff who directly attended the procedure. Thus, even if the relevant ground law is not specified, it can be said that the plaintiff's decision on whether to object to the disposition of this case and take measures for objection, and the disposition disposition of this case may be revoked, withdrawn, or altered by itself without any other legal basis (see, e.g., Supreme Court Decisions 91Nu3130, Jan. 17, 192; 2003Du469, May 25, 2006).

① When deliberation by the Deliberation Committee on Deliberation on Interpretation of the Ministry of Government Legislation at the 43th session of the Ministry of Government Legislation, the Defendant was able to use the RPF fuel within the Taeduk Special Research and Development Zone. ② The construction of the instant facilities is expected to cause environmental damage to neighboring housing prices and the Taeduk Special Research and Development Zone area. ③ The petition of neighboring residents was filed, and thus the instant disposition was revoked.

First of all, there is no dispute between the parties about the fact that the real estate of this case is located outside the special zone for the development of Taeduk Science. Therefore, the Ministry of Government Legislation’s interpretation that it is prohibited from using the RP fuel within the Taeduk Special Research and Development Zone cannot be a justifiable ground to revoke the construction permit of this case.

Next, there is no evidence to acknowledge the defendant's assertion that the environmental damage is expected to occur to the neighboring housing prices and the Taeduk Special Research and Development Zone area due to the installation of the facility of this case among the grounds for the disposition of this case. On the other hand, the defendant's assertion that the environmental damage is expected to occur to the neighboring housing prices and the Taeduk Special Research and Development Zone area is acknowledged by Gap evidence No. 2. However, under the following circumstances acknowledged by Gap evidence No. 2, the concentration of pollutants anticipated to be discharged to the facility of this case not only meet the permissible emission standards but also determined that the defendant installed the air emission facilities of this case as a result of comprehensive consideration of the location of the real estate of this case and the concentration of pollutants to be discharged to the facility of this case, etc.

① The instant facilities are subject to permission to install air emission facilities, and the Plaintiff obtained permission to install air emission facilities as follows:

A person shall be appointed.

○ The kinds of pollutants anticipated to be discharged from the instant facilities, the concentration before the disposal, the treatment efficiency, the concentration after the disposal, and the permissible emission levels are as follows:

A person shall be appointed.

Finally, the reason for the disposition of this case is that there is a large number of nearby residents' civil petitions, as long as there is no need for health expenses or other public interest, the construction permission already issued cannot be revoked or withdrawn. The third point cited by the defendant is not a justifiable reason for the cancellation of the construction permission of this case.

Thus, the defendant's above 1, 2, and 3 reasons cited by the defendant, and it cannot be a justifiable reason to revoke the building permit of this case, and there is no assertion or proof by the defendant as to the necessity of public interest to revoke the building permit of this case, and there is no other evidence to prove that the defendant had a legitimate comparison and bridge with respect to the huge disadvantage that the plaintiff would suffer in the revocation of the building permit of this case. Thus, the disposition of this case of this case is unlawful since it deviates from and abused discretion and it is unlawful to avoid its revocation.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.