[1] Matters to be considered when limiting construction works, etc. performed in the surrounding areas of cultural heritage

[2] In a case where the Korea Electric Power Corporation applied for permission to replace the existing steel tower installed within the preservation area of the historic and cultural environment of the Hasungsung, with a new steel tower, but the Administrator of the Cultural Heritage Administration rejected the above application, the case holding that the court below erred in the misapprehension of legal principles since the above disposition did not deviate from or abuse discretion

[1] Articles 13(1) and (3), 35(1)2, and 36 subparag. 2 of the Cultural Heritage Protection Act; Article 15(2)1(a) of the Enforcement Rule of the Cultural Heritage Protection Act / [2] Articles 13(1) and (3), 35(1)2, and 36 subparag. 2 of the Cultural Heritage Protection Act; Article 15(2)1(a) of the Enforcement Rule of the Cultural Heritage Protection Act; Article 27 of the Administrative Litigation Act

Korea Electric Power Corporation (Law Firm KEL, Attorneys Lee Jae-hwan et al., Counsel for the plaintiff-appellant)

The Administrator of the Cultural Heritage Administration (Attorney Jeong-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2012Nu13995 decided September 11, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 35(1)2 of the Cultural Heritage Protection Act provides that “any person who intends to engage in an act that is likely to affect the preservation of State-designated cultural heritage and that is prescribed by Ordinance of the Ministry of Culture, Sports and Tourism shall obtain permission from the Administrator of the Cultural Heritage Administration.” Article 15(2) of the Enforcement Rule of the Cultural Heritage Protection Act, which is delegated by him/her, stipulates that “the act of installing or enlarging a building or structure that is likely to impair the landscape of the relevant State-designated cultural heritage in a historical and cultural environment preservation area” [Article 13(1)(a)] is one of the permitted matters. The term “a historic and cultural environment preservation area” refers to an area prescribed by municipal ordinance within a limit of 500 meters from the outer boundary of the designated cultural heritage in principle for the protection of a historical and cultural environment of designated cultural heritage (Article 13(1) and (3) of the Cultural Heritage Protection Act).” Article 36 of the Cultural Heritage Protection Act stipulates that “the cultural

Cultural heritage is a national, national, or world heritage of outstanding historic, artistic, academic, or scenic value, and if it is damaged once, there are many cases where it is difficult to recover it in itself, and even if it is possible to recover it, it shall be preserved and managed in accordance with the basic principle for maintaining its original form. For this purpose, a historical and cultural environment, such as the cultural heritage itself, its surrounding natural landscape, etc., also need to be protected. However, when limiting construction works, etc. conducted in the surrounding area of cultural heritage, it shall be compared and compared to the private interest factors, such as public interest factors such as possibility of damage caused by construction works, etc., impact on the preservation and management of cultural heritage on the preservation and management of cultural heritage, the degree of infringement of property rights by construction works, etc., and the comparative and bridge shall conform to the principle of proportionality.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) When securing the Han River basin of the third country and installing new stocks after securing the Han River basin of the third country, Hasung Pungsung Pungsung was designated as State-designated cultural heritage (private No. 422) on September 16, 200 by recognizing historical importance, such as the discovery of buildings and appurtenant facilities of the third country, various soils, etc. conducted during that period, which were designated as State-designated cultural heritage on September 16, 200, and the excavation was not completed yet.

② An area within a radius of about 500 meters from the outer boundary of e.g., a preservation area for the protection of the historic and cultural environment of e.g., e., e., e., e., e., a historic and cultural environment of e., e., e., e., e., e., an area within a radius of about 500 meters from the outer boundary of e.g., e., e., an area designated as a preservation area. The Defendant announced the permissible standard for the present alteration of the current state to the preservation area of this case on July 10, 208, as amended by the Enforcement Rule of the former Cultural Heritage Protection Act by Ordinance

③ In the vicinity of the boundary line south of the preservation area of this case, the outer circular road in Seoul is passing along the direction of the west (four-lane) along that direction, and the reservoir of Chuncheon passes between the above roads, depending on the west and south of the west, the access road to the west, various restaurants and commercial buildings, two transmission lines, and several steel towers to support them are located.

④ The Plaintiff is a market-type public corporation in which the Government has invested at least 51% of its capital, and carries out the development and development of electric resources, transmission, transformation, distribution of electric power, etc. The Plaintiff planned to implement the instant construction with the aim of replacing the existing steel tower at a height of 34 m high in height installed on a site, such as 46m high to secure the safety of the said transmission line, by replacing the existing steel tower at a new type of steel tower at a height of 46m high to secure the safety of the said transmission line, among the electric transmission lines (which is located southwest along the southwest of the two transmission lines) established around 1979.

⑤ According to the instant construction plan, while continuing to supply electricity by installing a temporary steel tower and a temporary tower on the land immediately adjacent to the instant existing steel tower, the previous steel tower in the instant case is replaced with a new steel tower, and the installation is carried out by removing the existing steel tower and moving the temporary line to a new steel tower, and the floor width is reduced from 7m to 2.5m (However, there is no change in the steel tower site area), the site area offered to the construction is 1,097m from 7m to 2.5m (i.e., 978m2 in the site area of the new steel tower and 119m2 in the instant new steel tower), and the construction period is about 3 months.

6) According to the standards for the alteration of the current state of this case, a building, etc. cannot be newly constructed (which is part of the site for a place of work and a temporary tower) among the above construction area, belongs to Zone 1 where only the opening and reconstruction of existing buildings, etc. can be conducted, and the remainder belongs to Zone 1 where the highest height is 11m and not more than 3 floors, and sloping roof (which is at least 3:10 slopes), the highest height is limited to not more than 15m and not more than 3 floors.

7) The construction site of this case is located at the parallel of 450 meters south from the outer boundary of e.g., the building site of this case is located at the parallel of the west, and the building site of this case is located at the parallel of the west, the reservoir of Chuncheon in the south, the reservoir in the south, and the west-west in the south and southwest. The construction site of this case is formed at the west where trees form forests between the site of this case and the e.g., the e., the two sides are not observed from both sides, and the forest fire monitoring place installed at the outermost of e.g., the e., the e., the e., the instant existing steel tower is not visible, and only other steel towers and surrounding buildings are observed.

④ On June 1, 2011, the Plaintiff filed an application for permission for the alteration of the current state of State-designated cultural heritage, etc. with the purport to permit the Defendant to implement the instant construction project within the instant construction site. On July 19, 2011, the Defendant rejected the instant disposition that rejected the instant application on the ground that “the cultural heritage committee’s deliberation was likely to damage the historical and cultural environment surrounding cultural heritage, which was rejected.”

3. The following circumstances revealed by such factual basis: ① The instant construction works basically replace the existing steel tower with a higher new type of steel tower than 12 meters in order to secure the safety of human life of the electric transmission line; inasmuch as the existing steel tower in e.g., is not visible from e., e., whether to view the new steel tower in this case, but it is unclear whether to view the new steel tower in this case, but it is already seen with other steel tower, etc., even if 12 meters new view, it seems not to have an impact on the overall landscape even if it is difficult for the Plaintiff to take into account the fact that it is difficult for the instant construction works to view that the current state of buried cultural and cultural environment to be used temporarily as the place of work and the site for the steel tower in which the new construction of the instant construction site is prohibited, and it is difficult to view that the current state of buried cultural and cultural environment is difficult for the Plaintiff to take into account the fact that there is no possibility that the existing construction works should be no change in the current state of buried cultural and cultural environment in the instant construction works.

Nevertheless, the court below determined that the disposition of this case was unlawful because it deviates from or abused discretion, solely based on the circumstances stated in its holding. In so doing, the court below erred by misapprehending the legal principles on the standards for permission of an act that is likely to affect the preservation of State-designated cultural heritage, thereby affecting the conclusion of the judgment. The grounds for appeal pointing this out

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)