2016Guhap61235 Nullification, etc. of approval of execution plan for electric power resource development business

A

The Minister of Trade, Industry

Korea Electric Power Corporation

September 9, 2016

October 14, 2016

1. The conjunctive claim portion among the instant lawsuit shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

In the first place, the part of the project for compensating the transmission line compensation (security of power source) among the disposition of approval of the execution plan for electric source development business rendered by the Defendant against the Intervenor joining the Defendant (hereinafter referred to as the “Supplementary Intervenor”) on March 30, 2015 is invalid. In the second place, the part of the project for compensating the transmission line compensation (security of power source) among the above approval disposition is revoked.

1. Details of the disposition;

The supplementary intervenor set up a transmission tower without title on part of B forest No. 30,851 square meters (hereinafter referred to as “the forest of this case”) in Jinju-si owned by the Plaintiff, and occupies and manages the transmission line (hereinafter referred to as “the transmission tower and the transmission line of this case”) by linking it to the airspace.

On October 14, 2013, the Plaintiff filed a lawsuit against the Intervenor seeking the removal of the transmission tower and the transmission line and received a favorable judgment on May 7, 2015 (Seoul Central District Court 2013dan272585). This lawsuit is currently pending in the appellate court (Seoul High Court 2015Na29465).

In order to acquire the divided superficies of the forest of this case, the supplementary intervenor applied for the approval of the 154kV transmission line compensation project to the Defendant, and the Defendant approved and announced the motion of the supplementary intervenor on March 30, 2015 (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Facts without dispute, entry of Gap evidence 2, 4, and 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Basic facts;

1) On April 7, 1984, the Intervenor acquired superficies for the installation and ownership of electric transmission lines on the land outside 2,828 square meters and 2 lots (hereinafter “C forest”) in Jinju-si adjacent to the instant forest. However, around 1984, the Intervenor installed the instant transmission tower and the electric transmission line on the land of the instant forest (the instant transmission tower and the electric transmission line are the facilities that supply electricity to the west-do west-do area).

2) The intervenor did not undergo the procedures for hearing opinions of residents, etc. before applying for approval of the project to secure the right to use the forest of this case to the defendant.

3) In the case of forest land for which the Intervenor acquired superficies, since the average gradient of C forest land exceeds the standard required by the Management of Mountainous Districts Act, no power transmission tower, etc. can be installed from that place. If the Intervenor relocates the power transmission tower, the direction of other transmission towers connected with the power transmission tower should also be changed.

4) On January 28, 2016, the Intervenor did not reach an agreement on compensation for losses with the Plaintiff on forest land of this case, and filed an application for adjudication of expropriation with the Jungyang Land Tribunal, and deposited compensation for losses on June 23, 2016.

After the above expropriation ruling, the instant forest was divided into a square meter of B forest B 30,749m and a square meter of D forest 102m in Jinju, and the intervenor acquired the divided superficies over the public space between 1,354m and 13m, and 35m, which passed through the power transmission line, with respect to the said forest land B, and the ownership over the said D forest.

[Recognition] Facts without dispute, Gap evidence Nos. 8, Eul evidence Nos. 2, 4, and 7 (including additional numbers), Eul's images and the purport of the whole pleadings

B. Determination on procedural illegality

According to Articles 5(1) and 5-2(1)4 of the Electric Power Source Development Promotion Act, an electric power source developer shall establish an execution plan for electric power source development business and obtain approval from the defendant, hear the opinions of the residents, etc. before approval, but in the case of a business which acquires the land, etc. of electric power source facilities or secure the user right, hearing opinions

The above provision does not require the landowner’s consent at the time of the installation of electric power source facilities. Even if electric power source facilities were installed without securing the source of land use, to restore them to the original state, securing the source of land use again, and then to bring unnecessary costs to the society with a similar impact on the relevant landowner. Moreover, the approval of the project implementation plan to secure the source of use, such as the land for electric power source facilities, may be controlled by considering in the process of balancing interests between the public interest due to the implementation of the project and the private interest (the guarantee of private property rights) when examining whether there is deviation or abuse of discretion. Thus, it also includes cases concerning electric power source facilities installed without the landowner’s consent (see Supreme Court Decision 2011Du25272, Sept. 13, 2013). Since the project subject to the disposition of this case is designed to secure the right of use of electric power source facilities installed without the landowner’s consent, it is difficult to accept the procedural provisions of Article 5 of the Electric Power Source Development Promotion Act, such as the land owner’s right to use of land.

C. Determination on discretionary deviation and abuse

As seen earlier, the direction of the other transmission tower connected to the instant transmission tower may also be also changed when the transmission tower is transferred. It appears that construction works of such facility may interfere with the supply of electricity to a considerable area. Moreover, on the land on which the Intervenor acquired superficies, it is difficult to relocate the transmission tower due to the gradient, etc.

On the other hand, although the Plaintiff’s use of the forest of this case is partly restricted due to the instant disposition, the Intervenor appears to have paid the Plaintiff the fee for the use of the forest of this case upon the final and conclusive judgment of the relevant lawsuit. Of the entire forest of this case 30,851, the area where the transmission tower of this case is installed is 102m, and the area above the transmission line goes through the transmission line is 1,354m, the compensation was deposited through the expropriation ruling.

In full view of the above circumstances, even if the intervenor installed the transmission tower in the forest of this case and won the plaintiff in the lawsuit to remove the transmission tower, it is difficult to view the defendant's disposition of this case as much as more than the public interest protected by the plaintiff's private interest, which is infringed by the disposition of this case, and there is no other evidence to acknowledge this. Accordingly, the plaintiff's assertion that the disposition of this case is null and void due to the deviation or abuse of discretion is rejected.

D. Determination on the conjunctive claim

In ordinary cases where an administrative disposition is taken by public notice or notification, regardless of whether an interested party in the administrative disposition actually becomes aware of the fact that public notice or notification was made, it shall be deemed that there was an administrative disposition on the date when the public notice takes effect, and the period of filing a lawsuit for cancellation shall be calculated from that

Meanwhile, Article 6(3) of the Regulations on the Efficient Operation of Administrative Affairs (amended by Presidential Decree No. 27103, Apr. 26, 2016) provides that “Where the document does not specify the effective time in the document, the document shall take effect at the expiration of five days from the date of the public notice or public notice, etc.”

However, since the instant disposition was announced on March 30, 2015 without specifically disclosing the effective time in the public notice, it shall be deemed that it became effective at the expiration of five days from the date of the public notice. Since the conjunctive claim seeking the cancellation of the instant disposition among the instant lawsuit was filed on April 25, 2016, it is unlawful in that the filing period was excessive. Accordingly, the conjunctive claim portion among the instant lawsuit is dismissed.

3. Conclusion

Thus, the plaintiff's main claim of this case is dismissed as it is without merit, and the main claim of this case is dismissed as illegal.

The presiding judge, the Korean Judge;

Judges Kim Gin-young

Judges Sok-beon

A person shall be appointed.