(영문) 서울행정법원 2014.7.11. 선고 2014구합52725 판결

On December 18, 2012, the part concerning the business of securing the title to the power transmission line among the notice of approval of the execution plan for the power source development business, which was announced by the Ministry of Knowledge Economy, is invalid.

Reasons

1. Details of the disposition;

A. The Plaintiff is the owner of D Forest land 18,816 square meters (hereinafter “instant land”). B. The Intervenor’s Intervenor (hereinafter “ Intervenor”) as an electric source developer and applied for approval of an implementation plan for electric source development business for the construction of 154kVC electric transmission lines to the Defendant. On July 9, 1999, the Defendant approved and announced the implementation plan for the said business in accordance with Article 5(1) of the former Act on Special Cases Concerning Electric Source Development (amended by Act No. 7016, Dec. 30, 2003) to E, the Ministry of Commerce, Industry and Energy announced on July 30, 200, the Intervenor approved and announced the implementation plan for the said business, and on February 1, 200, the Intervenor decided to accept and use the land, and H, the owner of G land, to require the change of the location of the land and the location of the J line to the land for efficient use of the land.

C. On March 4, 2001, the Intervenor temporarily installed high voltage power transmission lines (hereinafter “the instant transmission lines”) over the airspace above the instant land. The Intervenor promoted consultation with the Plaintiff by notifying the Plaintiff of the incorporation of the land behind the installation of the instant transmission lines and the procedures for compensation thereof in writing prior to the establishment of the said transmission lines. However, the Intervenor did not reach an agreement on the establishment of the instant transmission lines, and there was no permission from the Jeju Do governor, etc. in lieu of consultation with the Plaintiff.

D. 1) On May 24, 2002, the Plaintiff filed a lawsuit against the Intervenor on May 24, 2002 against the Seoul Central District Court 2002Ga group 136973, which sought the removal of the transmission line of this case and the return of unjust enrichment equivalent to the rent. The above court accepted the Plaintiff’s assertion on December 11, 2003, and sentenced the Intervenor to remove the transmission line of this case and ordered the Intervenor to pay for unjust enrichment equivalent to the rent of divided superficies on the part where the use of the land of this case is restricted or it is impossible to use it for any other purpose due to the installation of the transmission line of this case. Accordingly, the Intervenor’s appeal and appeal were all dismissed (hereinafter “the final judgment of this case”).

2) Based on the above judgment on August 31, 201, the Plaintiff received a decision to substitute enforcement with regard to the removal of the instant transmission lines to Seoul Central District Court L, and delegated the enforcement officer affiliated with the Jeju District Court with respect to the removal of the instant transmission lines to execute replacement with regard to the removal of the instant transmission lines. However, on June 19, 2013, the enforcement officer requested the intervenors to voluntarily remove or suspend the instant transmission lines. However, since the instant transmission lines are connected with the major electric power systems of the Jeju East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East East North Korea caused the instant transmission lines to be extraordinary and high voltage line and the instant transmission line to be removed under the influence of electricity, and it is impossible to implement the safety report, such as the removal of the current current.

E. On August 2, 2012, the Intervenor filed an application for the implementation plan for electric source development business (hereinafter “instant business”) with the Defendant on August 2, 2012 in order to compensate the Defendant for losses incurred to the ground or public space 2,378m of the instant land, which is the unregistered land, and to promote the stabilization of the supply and demand of electric power through the acquisition of the right to use for the maintenance and repair of the relevant electric facilities, and the Defendant approved and publicly notified the implementation plan of the instant business (hereinafter “instant disposition”). On December 18, 2012, pursuant to Article 5 of the former Electric Source Development Promotion Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Electric Source Development Promotion Act”).

F. 1) The Intervenor filed an application for adjudication with the Central Land Expropriation Committee, which did not reach an agreement on the Plaintiff’s compensation. On September 26, 2013, the Central Land Expropriation Committee rendered an adjudication on the use of divided superficies and compensation for up to 16m through 57m from 16m to 2,378m in the airspace above the instant land among the instant land, and the date of commencement of use on November 19, 2013; and the date of commencement of use from the date of commencement of use to the date of continuation of the instant transmission line.

2) The Plaintiff filed a lawsuit against the Intervenor seeking the removal of the power transmission line of this case and subsequently won the lawsuit, and filed an objection by asserting that the Intervenor’s tort was proved, and thus, it cannot be accepted to make an ex post determination of use. However, the Central Land Expropriation Committee rejected the Plaintiff’s assertion on January 23, 2014. However, the amount of compensation for the Plaintiff increased to KRW 7,134,000.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6 (including each number, hereinafter the same shall apply), Eul evidence 1, 2, and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion of deviation and abuse of discretionary power

After the plaintiff became in a position to remove the power transmission line of this case in accordance with the final judgment of this case, the intervenor applied for the approval of the implementation plan of the business of this case to the defendant. The defendant applied for the approval of the implementation plan of the business of this case to the defendant. The plaintiff purchased the land of this case by setting up a plan to maintain and maintain the livelihood of the instant land and to send children with a pentry power generation, and purchase the land of this case. Since the power transmission line of this case has passed through the place of the instant land, the plaintiff's plan was virtually nonexistent, and as the plaintiff requested to change the location of the power transmission line of this case to the edge of the land of this case or another land owned by the plaintiff as if the plaintiff changed the location of the power transmission line at the request of H. However, in light of the fact that the intervenor did not comply with the disposition of this case, the disposition of this case is unlawful by abusing and abusing discretion, and it is obvious that its defect is obvious and void.

2) Claim on the unconstitutionality of relevant laws

Article 2 Subparag. 2 (b) of the Electric Power Source Development Promotion Act (hereinafter referred to as the “instant provision”) provides that “the business of acquiring the land, etc. for electric power source facilities or securing the right to use the land, etc. already installed or installed shall be one of the electric power source development business. According to the instant provision, even in cases where an electric power source developer, such as an intervenor, without any title, has installed electric power source facilities by impairing another’s land without permission, it can secure the right to use the land ex post facto, and as a result, there arises a problem of compelling the land owner’s people to have the right to use the land without any condition that the infringement

It shall be interpreted to apply only to cases where it is necessary to expropriate or use a third party's land without permission due to the expiration of the period of use, changes in the contents of business, etc., and the interpretation to apply to cases where electric power source facilities are installed or installed on another person's land without permission is to secure the source of use of the land is also in violation of Article 23 (1) and (3) of the Constitution and Article 37 (1) and (2) of the Constitution providing that the principle of excessive prohibition and the essential contents of the rights

On the other hand, where an electric power resource developer installs electric power resource facilities without permission on the land of the citizen, the owner of the relevant land, etc. may obtain a favorable judgment by filing a lawsuit seeking removal of electric power resource facilities and return of unjust enrichment with the court. However, in the case of the provisions of this case, the electric power resource developer can secure the right to use the land after obtaining approval of the execution plan for electric power resource development business even after the judgment is rendered. Accordingly, the provision of this case is a provision to punish the judgment that protects the people's rights. Accordingly, the provision of this case is in violation of Article 27 (1) of the Constitution that prescribes the right to be tried, namely, the right to

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the assertion of deviation and abuse of discretionary power

On the other hand, according to the detailed plan for the execution of electric power resource development business according to the government's basic plan for the supply and demand of electricity, the act of installing electric power source facilities is a kind of administrative plan conducted based on professional and technical judgment, and it is not legitimate to make the administrative plan decision in such a way that the administrative body guarantees a specific person's private interest to the maximum extent. The decision of the administrative plan is lawful within the scope of the planning discretion as long as the reasonableness of balancing profits and the objective of the decision of the administrative plan is recognized. The above facts and the purport of the whole arguments can be considered as follows. In other words, ① the power transmission line of this case is the 154kV power transmission line for supplying electricity to Jeju area, which corresponds to the national key power station of the public interest nature, ② the removal cost and transfer cost will occur if removal and removal of the power line of this case are anticipated, ③ the intervenor's implementation plan concerning the business of this case appears to have been established in consideration of the high technical review result related to the power resource development business of this case, ④ The plaintiff's allegation that the disposition of this case is unlawful solely on the ground.

2) As to the assertion of unconstitutionality of relevant laws

A) On the other hand, in order for an administrative disposition to be null and void as a matter of course, there must be an illegal cause in the disposition, and it must be objectively obvious that the reason for illegality is serious. On the other hand, barring any special circumstance, the circumstance that the law is in violation of the Constitution cannot be deemed objectively clear before the Constitutional Court rendered a decision of unconstitutionality, such defect constitutes a ground for revocation of administrative disposition, and it does not constitute a ground for invalidation as a matter of course (see, e.g., Constitutional Court en banc Decision 2009Hun-Ba101, Sept. 30, 2010). Therefore, even if the provision of this case violates Articles 23(1) and (3), 27(1), and 37(1) and (2) of the Constitution as alleged by the Plaintiff, such circumstance alone cannot be deemed null and void as a matter of course. Thus, the Plaintiff’s assertion in this part

B) Even if it is not so, the purpose of the instant provision is to implement appropriate compensation for landowners, etc. by allowing them to use the land of electric power facilities installed or installed in a project operator in accordance with legitimate procedures, and to promote stability in the supply and demand of electricity and contribute to the development of the national economy. ② Even if electric power resource development project was implemented without securing the source of the right to use the land, it is reasonable to restore the results of the electric power resource development project carried out to the beginning and implement the same electric power resource development project again, and to implement the procedure again from the beginning without any similar effect on the owner of the land. As such, social and economic aspects are increased, and the public function provided by the project in question is seriously damaged, and it is not always reasonable from a social and economic point of view. ③ Approval of the project implementation plan to secure the source of the right to use the land of electric power facilities installed in a project can be reasonably controlled by the exercise of discretion through balancing the public interest and private interest arising from the implementation of the project in question, ④ It can not be seen as having been in violation of the Constitution and the right to pursue the national economy.

3. Conclusion

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