(영문) 서울행정법원 2015.7.10. 선고 2014구합61675 판결

On April 1, 2014, the Defendant’s approval and disposition of the execution plan for electric power resource development business (154ky’s secondary transmission line construction business) and the designation of electric power resource development business area to the Defendant joining the Defendant.

Reasons

1. Details of the disposition;

A. The Intervenor joining the Defendant (hereinafter referred to as “the Intervenor”) prepared an implementation plan for electric power resource development business (hereinafter referred to as “the instant project”) with the contents that build electric power transmission lines of 154km in length, 4.82 km in length (hereinafter referred to as “electric transmission lines”) at the front of the 72,943m of the present drawing of the Chungcheong-gun, Chungcheongnam-gun, the Defendant, etc., and filed an application for its approval with the Defendant on June 2012.

B. On April 1, 2014, the Defendant approved the implementation plan of the instant project pursuant to Article 5(1) of the Electric Power Source Development Promotion Act, and publicly notified the approval contents as follows pursuant to Article 2014-62 of the notification of the Ministry of Trade, Industry and Energy pursuant to Article 5(5) of the same Act on April 1, 2014, and publicly notified the following pursuant to Article 8 of the Framework Act on the Regulation of Land Use (hereinafter referred to as the "approval Disposition in this case", which is the notification of approval of the implementation plan in this case, and the designation of the electric power resource development project zone in this case is referred to as the "designated Disposition in this case" and the "disposition in this case" is referred to as the "disposition in this case by adding each of the above dispositions.

A person shall be appointed.

C. The Plaintiff owned 305,730m2 in neighboring land, such as 12,298m2, 141m3, 141m3, 143m3, 763m2 in the daily stone collection station (hereinafter referred to as “the stone collection station in this case”), and owned 48,463m2 in the daily stone collection station (hereinafter referred to as “the stone collection station in this case”). The Plaintiff’s 8,815m2 in the above land belongs to the power transmission track site in this case and the steel tower site to be installed according to the business in this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 3 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Failure to hear opinions from residents, etc. under the Electric Power Source Development Promotion Act;

1) The plaintiff's assertion

An intervenor in the Electric Power Development Promotion Act, without undergoing the procedures for hearing opinions of residents, etc. under Article 5-2 (1) of the same Act and against Article 5 (3) 6 of the Enforcement Decree of the same Act, was subject to the instant approval disposition by the Defendant, attaching a false review report, without preparing a review report on the opinions of residents, etc. submitted at the time of holding a resident briefing session. Therefore, the instant approval disposition is unlawful due to procedural defects, and the instant designation disposition based on the premise of the instant approval disposition is also unlawful.

2) Relevant statutes

전원개발촉진법제5조(전원개발사업 실시계획의 승인)① 전원개발사업자는 전원개발사업 실시계획(이하 "실시계획"이라 한다)을 수립하여 산업통상자원부장관의 승인을 받아야 한다. 다만, 대통령령으로 정하는 전원개발사업에 대하여는 그러하지 아니하다.③ 실시계획에는 다음 각 호의 사항이 포함되어야 한다.1. 전원설비의 개요2. 전원개발사업구역의 위치 및 면적3. 전원개발사업의 시행기간4. 전원개발사업의 소요 자금 및 그 조달에 관한 사항5. 제13조에 따른 공공시설의 설치 및 비용 부담에 관한 사항6. 국토자연환경 보전에 관한 사항7. 그 밖에 전원개발사업에 관하여 대통령령으로 정하는 사항제5조의2(주민등의 의견청취)① 전원개발사업자는 제5조에 따라 실시계획의 승인 또는 변경승인을 받으려는 경우에는 승인또는 변경승인을 신청하기 전에 사업시행계획의 열람 및 설명회를 통하여 대상사업의 시행으로 영향을 받게 되는 지역의 주민 및 관계 전문가 등(이하 "주민등"이라 한다)의 의견을들어야 한다. 다만, 다음 각 호의 경우에는 그러하지 아니하다.1. 다른 법령에 따라 이미 주민등의 의견을 수렴한 경우2. 국방상 기밀을 지켜야 할 필요가 있는 경우3. 실시계획의 사업면적 또는 선로의 길이가 100분의 30의 범위에서 변경되는 경우4. 설치된 전원설비의 토지등을 취득하거나 사용권원을 확보하는 사업의 경우□ 전원개발촉진법 시행령제15조(실시계획에 포함될 사항)③ 법 제5조제3항제7호에서 "대통령령으로 정하는 사항"이란 다음 각 호의 사항을 말한다.6. 제18조의3 제3항 및 제18조의4 제3항에 따른 검토제18조의3(제출된 의견의 처리)① 주민등은 제18조제3항제4호에 따른 의견 제출기간에 주관 시장·군수·구청장 또는 관계 시장·군수·구청장에게 의견을 제출할 수 있다. 이 경우 주민등으로부터 의견을 제출받은 관계시장·군수·구청장은 제출받은 의견을 주관 시장·군수·구청장에게 통지하여야 한다.② 주관 시장·군수·구청장은 제1항에 따라 제출받거나 통지받은 의견을 제18조제3항제2호의 열람기간이 끝난 날부터 14일 이내에 전원개발사업자에게 알려야 한다. 이 경우 사업시행계획에 대하여 주관 시장·군수·구청장 또는 관계 시장·군수·구청장의 의견이 있으면 그 의견을함께 알릴 수 있다.③ 전원개발사업자는 제2항에 따라 통지받은 주관 시장·군수·구청장 또는 관계 시장·군수·구청장 및 주민등의 의견에 대한 검토서를 작성하여야 한다.| 제18조의4(설명회의 개최)① 전원개발사업자는 법 제5조의2제1항에 따라 주민등의 의견을 듣기 위한 설명회를 제18조제3항제2호에 따른 열람기간에 개최하여야 한다. 이 경우 대상지역이 둘 이상의 시·군·구에 걸치는 경우에는 각각의 시·군·구에서 설명회를 개최하되, 전원개발사업자가 해당 시장·군수·구청장과 협의한 경우에는 설명회를 통합하여 개최할 수 있다.③ 전원개발사업자는 제1항에 따른 설명회 개최 시 제출된 주민등의 의견에 대한 검토서를 작성하여야 한다.

3) Determination

If the purport of evidence Nos. 3, 4, and 5 is added to the statement of evidence Nos. 3, 5, the intervenor prepared the project implementation plan of this case and submitted it to the head of the Gun having jurisdiction over the project area of this case on May 29, 2012, and the petition head of the Gun announced that the project implementation plan of this case was available for public inspection and presentation to the residents on May 29, 2012, the petition head of the Gun announced that the plan of this case was held for public inspection (the military economic investment department, the current drawing, the office, the inquiry office, the office of the Korea Electric Power Corporation, the Daejeon Chungcheongnam-nam Development Agency, the period for public inspection (from May 29, 2012 to June 15, 2012), the method of submitting residents' opinions (the form in which the residents' opinions were submitted to the public inspection site). The petition head of the Gun is recognized as having no opinion on the petition of this case on May 29, 2012, 2016

According to the above facts, the intervenor has gone through the procedures for hearing opinions of residents, etc. under Article 5-2 (1) of the Electric Source Development Promotion Act, and has prepared a written review of opinions of residents, etc. pursuant to Article 5 (3) of the same Act and Article 15 (3) 6 of the Enforcement Decree of the same Act. Therefore, this part of the plaintiff's assertion

B. Violation of Article 21(1) of the Administrative Procedures Act

1) The plaintiff's assertion

According to Article 21(1) of the Administrative Procedures Act, in cases where an administrative agency imposes an obligation on a party or imposes a restriction on his/her rights and interests, it shall notify the party of the fact of the cause of the disposition, details of the disposition and legal basis, and the submission of his/her opinion thereon. The Defendant did not notify the Plaintiff that the land would be expropriated and used by the instant disposition, while granting the instant approval, of the said matters in advance. Accordingly, the instant disposition

2) Relevant statutes

The definitions of terms used in this Act are as follows: 4. The term "parties, etc." means persons referred to in the following items: (a) Parties, directly related to the disposition of administrative agencies, either ex officio or upon the application of an administrative agency, or interested parties, who have participated in the administrative procedures, except as otherwise expressly provided for in other Acts, with respect to the disposition under Article 3 (Scope of Application), reporting, administrative pre-announcement of legislation, administrative pre-announcement of legislation, and administrative guidance (hereinafter referred to as "administrative procedures"), the provisions of this Act shall apply. Article 21 (Prior Notice of Disposition) (1) impose obligations on the parties or impose restrictions on their rights and interests, the administrative agency shall notify the parties, etc. of the following matters in advance:

3) Determination

Article 21 (1) of the Administrative Procedures Act provides that "in cases where an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, the administrative agency shall notify the parties concerned of the title of the disposition, facts of the disposition, details of the disposition and legal basis, and the submission of opinions thereon

① Article 2 subparag. 4 (a) of the Administrative Procedures Act provides that “party to the Administrative Procedures Act” as “party directly to the administrative agency’s disposition,” and Article 5(5) of the Electric Power Source Development Promotion Act provides that “if an implementation plan for electric power resource development business has been approved, it shall be announced publicly, and the instant disposition constitutes a disposition that affects many and unspecified persons with many and unspecified parties as other parties, it shall not be deemed that the instant disposition imposes an obligation on the party subject to prior notification under Article 21(1) of the Administrative Procedures Act or a disposition that restricts rights and interests (see Supreme Court Decision 2007Du1767, Jun. 12, 2008). Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

1) The plaintiff's assertion

The instant project is a project subject to prior examination of factors influencing disasters pursuant to Article 4(1) of the Countermeasures against Natural Disasters Act. The Defendant, etc. did not examine factors influencing disasters prior to the instant disposition. Accordingly, the instant disposition is unlawful as it is procedural defect.

2) Determination

If the purport of the entire pleadings is added to the statement No. 16 of the evidence No. 16, the intervenor is recognized as having reviewed the factors influencing the project of this case on or around June 2013, prior to the disposition of this case. Thus, the plaintiff's above assertion is without merit.

D. Violation of the Control of Firearms, Swords, Explosives, etc. Act

1) The plaintiff's assertion

Powders storage facilities are installed on the land of 140 Simsan Mamsan Mamsan, the Plaintiff’s Cheongbuk-gun, and Article 30 of the Enforcement Decree of the Control of Firearms, Swords, Explosives, etc. Act (hereinafter “Control of Firearms, etc.”) must keep a distance of at least 170 meters from the powders storage place where transmission lines are completed. The Defendant issued the instant disposition in violation of the above provision.

2) Relevant statutes

▣ 총포·도검·화약류 등 단속법제25조(화약류저장소설치허가)① 화약류저장소를 설치하고자 하는 사람은 대통령령이 정하는 화약류저장소의 종별구분에 따라 그 설치하고자 하는 곳을 관할하는 지방경찰청장 또는 경찰서장의 허가를 받아야 한다.화약류저장소의 위치·구조 · 설비를 변경하고자 하는 때에도 또한 같다.▣ 총포.도검.화약류 등 단속법 시행령제2조(정의)이 영에서 사용하는 용어의 뜻은 다음과 같다.9. "제4종 보안물건"이란 「도로법」 제10조 각 호에 따른 도로, 고압전선, 화약류취급소 및 화기취급소를 말한다.제30조(화약류저장소와 보안물건간의 보안거리)① 화약류저장소는 화약류의 저장량에 따라 그 저장소의 외벽으로부터 보안물건에 이르기까지의 사이에 별표 8에 의한 거리를 두어야 한다.

3) Determination

Pursuant to Article 25 of the Control of Firearms, etc. Act and Article 30 (1) of the Enforcement Decree of the same Act, a person who intends to install an explosives storage facility shall keep a certain distance from the outer wall of the repository to the high-tension electric wires and security goods. However, the above provision does not impose an obligation on a person who intends to install an explosives storage facility, nor impose an obligation on a electric power resource developer such as the intervenor (no evidence exists to acknowledge that an explosives storage facility is installed on the land of 140 land of Chungcheongbuk-gun, the Plaintiff’s land owned by the Gu or the Plaintiff) on a different premise. The above assertion by the Plaintiff is without merit.

E. Violation of Article 89(1) of the Electric Utility Act

1) The plaintiff's assertion

According to Article 89(1) of the Electric Utility Act, an operator of the electric utility business, such as the Intervenor, shall operate the business after consulting with the owner or occupant of the land where electric lines are installed. The Intervenor selected the passage of the electric transmission line of this case without going through any consultation with the Plaintiff until April 2014 where the instant disposition was taken. Therefore, the instant disposition was unlawful as it violates Article 89(1) of the Electric Utility Act.

2) Relevant statutes

(2) In the case of paragraph (1), Article 88 (2) through (5) shall apply mutatis mutandis to the case of paragraph (1), Article 88 (2) through (5) to the owner or occupant of the land. (2) The operator of the electric utility business shall, after consultation with the owner or the person concerned under subparagraph 5 of Article 2 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, apply mutatis mutandis to the establishment or transfer of divided superficies for the use of divided superficies for the land or underground space of another person, if such consultation has been reached. (2) The operator of the electric utility business may independently apply for the registration of the establishment or transfer of divided superficies for the use of the land or underground space under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, by applying mutatis mutandis Article 99 of the Registration of Real Estate Act.

3) Determination

Article 89(1) of the Electric Utility Act purports that an operator of the electric utility business shall consult with the owner of the land in advance before installing electric lines on the ground of another's land. Thus, even if the intervenor did not consult with the plaintiff before obtaining approval on the implementation plan of the business of this case, the disposition of this case is exempted from consultation with the plaintiff before installing the electric transmission line of this case. Therefore, the fact that the plaintiff did not consult with the plaintiff before the disposition of this case does not constitute unlawful because it violates Article 89(1) of the Electric Utility Act (On the other hand, according to Article 89-2(1) and (2) of the same Act, the operator of the electric utility business shall not be deemed to have violated Article 89(1) of the Electric Utility Act. (On the other hand, according to Article 89-2(1) and (2) of the same Act, if the consultation was reached on the premise that sectional superficies was established for the use of the land of the other person, the operator of the electric utility business may independently apply for the

F. The assertion of violation of the selection criteria for a transitional site

1) The plaintiff's assertion

The intervenor selected the passage of the transmission line in accordance with the criteria for the selection of the passage of the internal guidelines (hereinafter referred to as the "the criteria for selection of this case"). Since the above criteria have been enforced by the administrative agency whenever granting approval for the construction of the transmission line, the administrative agency is bound by the above criteria in selecting the passage of the transmission line of this case.

However, according to the selection criteria of this case, the location selection advisory committee consisting of two to four representative representatives should be organized to select a progress, and the area in the Quarrying shall be excluded from the passage of transmission lines. There is doubt as to whether the location selection advisory committee consisting of the location selection advisory committee for the selection of the passage of transmission lines of this case was properly organized, and the location selection advisory committee was included in the passage of transmission lines of this case. The disposition of this case is unlawful since it violates the selection criteria of this case.

2) The so-called “administrative rules or internal guidelines,” which set forth the criteria for the determination of duties or the interpretation and application of statutes, are generally effective only within the administrative organization and do not have external binding force, and thus, such administrative disposition is not immediately unlawful solely on the ground that it violated such guidelines. Provided, That if administrative rules, which are the rules for the exercise of discretionary power, are enforced as set forth therein and administrative practices are carried out, the administrative agency is placed under self-detained in relation to the other party in accordance with the principle of equality or the principle of protection of trust, and thus, barring any special circumstance, any disposition violating such rules is an illegal disposition that deviates from and abused discretionary power (see Supreme Court Decision 2009Du7967, Dec. 24, 2009).

However, it is insufficient to find that the statement in Eul evidence No. 6 alone carried out the instant selection criteria, which led to the enforcement of the administrative practice, or that the plaintiff had a trust in the value of protection on the said criteria, and there is no other evidence to acknowledge this otherwise. Therefore, even if the selection of the course of transmission of the instant transmission line was carried out contrary to the selection criteria of this case, the instant disposition cannot be deemed unlawful on the sole basis of that fact, and thus, the Plaintiff’

(g) The assertion of deviation and abuse of discretionary authority;

1) The plaintiff's assertion

① Taking into account the safety of the steel tower, the area within the stone station should be excluded from the passage of the transmission line. In the process of selecting the passage of the instant stone station, the Defendant et al. selected the passage of the instant stone collection station as the passage of the instant stone transmission line, and ② the passage of the instant stone collection station compared to the passage of the two other candidates, the passage of the instant stone collection station is more wide natural environment conservation and ecological map than the passage of the instant two candidates, and the tide protection zone is very close, so the other two candidates pass more economically and more than the passage of the instant stone station length, steel tower number, construction cost, and construction access road. ③ Unlike the Defendant’s assertion, the Plaintiff’s permission to collect earth and stone around April 1, 201 and around April 1, 2014, which was at the time of the selection of the passage of the transmission line site of the instant case, and the Plaintiff’s permission to collect earth and stone from the neighboring land of the instant case was deemed unlawful if the Plaintiff’s project continues to remain in force.

2) Determination

A) An administrative plan refers to an activity criteria established to realize order at a certain point in the future by integrating and coordinating administrative means related to professional and technical judgments on administration in order to achieve a specific administrative objective. An administrative agency has relatively broad freedom to form a specific administrative plan. However, the administrative agency’s freedom to form such a specific administrative plan cannot be deemed unlimited, and there is a limitation that the interests of relevant persons should be fairly compared and compared not only between the public interest and private interest but also between the public interest and private interest. Thus, if an administrative agency’s formulation of the administrative plan does not provide for the benefit or omits matters to be included in those subject to consideration of the benefit and interest, or where the benefit and objectivity are lacking in legitimacy and objectivity, such administrative plan’s determination may be deemed unlawful in terms of the benefit and interest (see Supreme Court Decision 2012Du2467, Jul. 10, 2014).

B) the facts of recognition

(1) On April 2010, an intervenor constituted a committee for the selection of passage points on September 29, 2010, and thereafter on September 29, 2010.

At the beginning of the first meeting of the Committee, a survey was conducted on the selection of the selection committee for the preliminary progress-based field survey and the selection committee for the selection committee. On November 25, 2010, the second meeting of the Selection Committee for the Progressed Site Selection on January 14, 201, the third meeting of the Selection Committee for the Progressed Site Selection Committee on April 28, 201, and the fourth meeting of the Selection Committee for the Progressed Site Selection Committee on April 28, 2011, determine the progress of the transmission line of this case as the optimal progress at the time of the fourth meeting.

(2) In the process of selecting the transmission line of this case, three candidates were selected through a reverse analysis, etc., such as the list of candidates as shown in the "living environment" column of the "collective village in the "living environment of the candidate candidate list" as shown in the above list 2.3, the distance from the group village is far more than 2.3, and the "collective civil petition occurrence (related agency)" column of the "collective community" column of the "location of the site" as shown in the "collective civil petition list" column, such as the list of the candidate candidate candidate list as shown in the "living environment of the candidate list" column of the above list 2.3.

In order to minimize the number of villages in progress and minimize the damage of local residents, the Selection Committee for the Transitional Site shall select the passage of the instant transmission line as close to the first bill, such as the list of the passage points of the instant transmission line. In the event that transmission line and the steel tower are installed as of the expiration date of the instant transmission line, the attached Form “Attachment” is not installed within the instant collection place, and the steel tower is installed at a place less than approximately 30 meters away from the above quarrying (the location of the steel tower is located under the part of the instant collection place).

(3) Meanwhile, in the course of consultation with the Intervenor, the Plaintiff asserted that the Plaintiff install the transmission line bypassing to the port rather than the passage of the instant transmission line, as shown in the Plaintiff’s assertion, it is necessary to install the transmission line in addition to three steel towers and approximately 420 meters of tracks due to the nature of mountain topographical features.

[Ground of recognition] Facts without dispute, entry of Eul evidence 6, images of Eul evidence 9, the purport of the whole pleadings

C) Comprehensively taking into account the following circumstances acknowledged by the evidence as above, the instant disposition taken by the Defendant, who has relatively broad freedom of formation in drafting and determining a specific administrative plan even after considering the grounds alleged by the Plaintiff, did not err by deviating from or abusing the discretion.

① As the demand for electricity has increased rapidly due to the construction of government-type government office buildings and multifunctional administrative city, the existing 354kV petition transformation stations have limitations to meet the demand for electricity. Accordingly, the 354kV sub-offices were constructed for the stable supply of electricity in the above area. Accordingly, the Defendant, etc. was to implement the instant project in order to install the electric transmission lines connected with the 154kV sub-V power transmission lines and 154kV new coal transmission lines. The necessity of the instant project is recognized.

(2) In light of the fact that Article 5-2 of the Electric Power Source Development Promotion Act requires the implementation of procedures to hear the opinions of the residents of the area affected by the implementation of the electric power source development project prior to obtaining approval of the implementation plan for the electric power source development project, the opinions of the residents living in the area is an important factor to consider in the implementation of the electric power source development project. In the case of the remaining 2, 3 bills excluding the passage of the electric power line of this case and the passage of the Plaintiff’s assertion, the power transmission line is more adjacent to the residential area of the resident and in reality, it is difficult

③ As of June 30, 2010, permission to collect earth and rocks for the removal of the instant quarrying was expired. At the time of the instant disposition, only the permission to collect earth and rocks for the restoration of stone collection stations remains effective. However, blasting for the collection of earth and rocks for the restoration of stone is conducted on a small scale, different from blasting for the removal of earth and rocks. Furthermore, according to the course of the transmission line, the steel tower is not installed within the instant stone collection station, and a steel tower is installed at a place less than 30 meters away from the above stone collection station toward the south. Accordingly, even if blasting for the restoration of stone is conducted in the stone collection station, it seems that it does not directly affect the safety of the steel tower.

④ The power transmission line of this case is installed at 58m or 108m on the land owned by the Plaintiff, and the right of use acquired by the Intervenor based on the instant disposition is divided against the part of the land owned by the Plaintiff, excluding the land of the steel tower. Therefore, according to the passage of the power transmission line of this case, even if the power transmission line is installed, the Plaintiff may appropriately use the part on the ground that does not cause damage to the power line for the purpose of possible use. Even if the Plaintiff was partly restricted in using the land due to the construction of the power line of this case, it can be said that the Plaintiff’s property right is in essence infringed due to expropriation, etc., and it cannot be deemed that the private profit restricted by the Plaintiff due to the implementation of the instant project is more than the public interest, such as smooth supply of electricity through the installation of the power line of this case and protection of the living

⑤ While the Plaintiff’s assertion is that the instant stone collection complex was created and operated as a stone collection complex, the Plaintiff concluded a service business contract with a service company on November 4, 2013, and is currently at the present stage of preparation for design and authorization of stone collection complex. As such, the circumstance that the Plaintiff had the aforementioned plan in the instant disposition on April 1, 2014 cannot be deemed as a matter that should be included in the subject of consideration of profit balancing.

3. Conclusion

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