[1] In a case where a claim is filed against an administrative agency to seek confirmation of invalidity of a disposition, in which a boys and girls who are an incorporated foundation Gap had been infringed on environmental interests protected by law due to the approval of change in the purpose of reclamation of public waters, which changed the purpose of reclamation from the creation of a housing site to the shipbuilding facility site, the case holding that

[2] In a case where an approval disposition of reclamation of public waters was taken before the Public Waters Reclamation Act was enacted as amended by Act No. 5911 on February 8, 199, whether such approval can be granted prior to the authorization (affirmative), and in this case, the legal nature of the approval disposition of change in the purpose of reclamation of public waters (= discretionary act

[1] 재단법인 갑 수녀원이, 매립목적을 택지조성에서 조선시설용지로 변경하는 내용의 공유수면매립목적 변경 승인처분으로 인하여 법률상 보호되는 환경상 이익을 침해받았다면서 행정청을 상대로 처분의 무효 확인을 구하는 소송을 제기한 사안에서, 공유수면매립목적 변경 승인처분으로 갑 수녀원에 소속된 수녀 등이 쾌적한 환경에서 생활할 수 있는 환경상 이익을 침해받는다고 하더라도 이를 가리켜 곧바로 갑 수녀원의 법률상 이익이 침해된다고 볼 수 없고, 자연인이 아닌 갑 수녀원은 쾌적한 환경에서 생활할 수 있는 이익을 향수할 수 있는 주체가 아니므로 위 처분으로 위와 같은 생활상의 이익이 직접적으로 침해되는 관계에 있다고 볼 수도 없으며, 위 처분으로 환경에 영향을 주어 갑 수녀원이 운영하는 쨈 공장에 직접적이고 구체적인 재산적 피해가 발생한다거나 갑 수녀원이 폐쇄되고 이전해야 하는 등의 피해를 받거나 받을 우려가 있다는 점 등에 관한 증명도 부족하다는 이유로, 갑 수녀원에 처분의 무효 확인을 구할 원고적격이 없다고 한 사례.

[2] In light of the contents and purport of relevant statutes, such as Article 21-2 of the former Public Waters Reclamation Act (wholly amended by Act No. 5911, Feb. 8, 1999; hereinafter the same), and the process of amendment, in cases where the purpose of reclamation is changed after an approval for reclamation of public waters was issued before the implementation of the Public Waters Reclamation Act (wholly amended by Act No. 5911, Feb. 8, 1999, Article 21-2 of the former Public Waters Reclamation Act applies. Unlike the provisions that it is impossible for a reclamation licensee to change the purpose of reclamation before authorization for completion of reclamation, the reclamation licensee cannot change the purpose of reclamation before authorization for completion of reclamation. Thus, approval for change of the purpose of reclamation cannot be deemed prohibited prior to authorization for change of the purpose of reclamation. In this case, approval for change of the purpose of reclamation is an administrative agency originally approved for reclamation of public waters, the content and degree of the reclamation project, the necessity and effect of change in the purpose of reclamation, changes in the surrounding environment, etc.

[1] Article 12 of the Administrative Litigation Act / [2] Article 12 of the former Public Waters Reclamation Act (wholly amended by Act No. 5911 of Feb. 8, 1999) (see current Article 45 of the Public Waters Management and Reclamation Act), Article 21-2 (see current Article 48 (1) of the Public Waters Management and Reclamation Act), Article 28 of the former Public Waters Reclamation Act (amended by Act No. 7482 of Mar. 31, 2005) (see current Article 48 (1) of the Public Waters Reclamation Act), Article 3 (1) of the Addenda of the Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 199)

Attached List of Plaintiffs (Attorney Park Yong-young et al., Counsel for the plaintiff-appellant)

Do Governor of Gyeongnam-do

Changwon-si (Attorney Jin-si, Counsel for the defendant-appellant)

Busan High Court Decision 2008Nu5735 Decided November 27, 2009

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the ground of appeal on the plaintiff's standing to sue of the corrected Maternal Maternal Maternal Maternal Maternal Maternal Maternal Ma

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interests protected by the administrative disposition have been infringed, the party is entitled to be judged by the legitimacy thereof by filing an administrative litigation seeking a nullification of the administrative disposition. The legal interests referred to in this context refer to the individual, direct and specific interests protected by the relevant laws and regulations and the relevant laws and regulations (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006, etc.). It does not include indirect or factual and economic interests (see Supreme Court Decision 2003Du11988, May 25, 2006, etc.).

원고 수녀원은 수도원 설치 운영 및 수도자 양성 등을 목적으로 설립된 재단법인으로서, 공유수면매립 승인처분의 매립목적을 당초의 택지조성에서 조선시설용지로 변경하는 내용의 이 사건 처분으로 인하여 원고 수녀원에 소속된 수녀 등이 전과 비교하여 수인한도를 넘는 환경침해를 받지 아니하고 쾌적한 환경에서 생활할 수 있는 환경상 이익을 침해받는다고 하더라도 이를 가리켜 곧바로 원고 수녀원의 법률상 이익이 침해된다고 볼 수 없고, 자연인이 아닌 원고 수녀원은 쾌적한 환경에서 생활할 수 있는 이익을 향수할 수 있는 주체도 아니므로 이 사건 처분으로 인하여 위와 같은 생활상의 이익이 직접적으로 침해되는 관계에 있다고 볼 수도 없다. 그리고 상고이유 주장과 같이 이 사건 처분으로 인하여 환경에 영향을 주어 원고 수녀원이 운영하는 쨈 공장에 직접적이고 구체적인 재산적 피해가 발생한다거나 원고 수녀원이 폐쇄되고 이전해야 하는 등의 피해를 받거나 받을 우려가 있다는 점 등에 관한 증명도 부족하다. 따라서 원고 수녀원에게는 이 사건 처분의 무효확인을 구할 원고적격이 있다고 할 수 없다.

Although it is inadequate for the court below to determine that there is no environmental interest protected by the law that infringes or is likely to infringe on the rights due to the instant disposition on the ground that environmental interest belongs to a natural person under its nature, the court below's conclusion to deny the standing to sue of the plaintiff boys and girls is justifiable, and therefore, the ground of appeal on this part

2. As to the ground of appeal on whether to change the purpose of reclamation on reclaimed land before authorization of completion

According to the former Public Waters Reclamation Act (wholly amended by Act No. 5911 of Feb. 8, 199; hereinafter “former Public Waters Act”), a reclamation license holder acquires the ownership of reclaimed land pursuant to Article 14 of the former Public Waters Act on the date of obtaining authorization for completion after completing reclamation works. Article 21-2 of the same Act provides that “The person who acquired the ownership of reclaimed land pursuant to Article 14 and his successor shall not change the purpose of reclamation at the time of license within five years from the date of obtaining authorization for completion pursuant to Article 12: Provided, That this shall not apply where it is necessary to use the reclaimed land for national projects or where it is changed for public or public purposes.” However, Article 28 of the former Public Waters Reclamation Act (amended by Act No. 5911 of Feb. 8, 1999; hereinafter “former Public Waters Act”) provides for an amendment to the purpose of reclamation to Article 28 of the former Public Waters Act from the date of obtaining authorization for completion of reclamation to the reclamation license or the successor to the reclaimed land.

In light of the content and purport of the relevant Acts and subordinate statutes and the process of amendment, etc., where the approval and disposition of reclamation of public waters was taken on July 18, 1990 prior to the enforcement of the Public Waters Act, and the purpose of reclamation is modified, Article 21-2 of the former Public Waters Act applies to the case of changing the purpose of reclamation. Unlike Article 28 of the Public Waters Act, the above provision provides that the reclamation licensee cannot change the purpose of reclamation before obtaining authorization of reclamation work’s completion, the reclamation licensee cannot change the purpose of reclamation within five years after obtaining authorization of completion of reclamation work’s ownership. Thus, the approval of the change of the purpose of reclamation cannot be deemed as prohibited prior to the completion of reclamation as in the instant disposition. In this case, the approval of the change of the purpose of reclamation is the discretionary act that an administrative agency which originally obtained approval of reclamation of public waters, takes into account the situation of reclaimed land, content and progress of the reclamation project, the necessity and effect of the change, the need and effect of the change, changes in the surrounding environment due to

The judgment below to the same purport is just, and contrary to what is alleged in the grounds of appeal, there is no error in the misapprehension of legal principles as to the interpretation and discretion of Article 21-2 of the former Public Waters Act and Article 3 of the Addenda

3. As to the ground of appeal on the legitimacy of the change in the purpose of reclamation of the reclaimed land of this case

According to the reasoning of the lower judgment and the first instance judgment partially accepted by the lower court, the lower court determined that the instant disposition that changed the purpose of the reclamation of public waters of this case from a housing site to a shipbuilding facility site and approved it was based on the need to change the purpose of reclamation to a shipbuilding facility site due to changes in public interest urban planning and surrounding circumstances, and thus, cannot be said to constitute

Examining the circumstances based on the judgment of the court below in light of the record, the court below did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on deviation and abuse of discretionary power.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Jeon Soo-ahn (Presiding Justice)