[1] Whether acts subject to a request by the head of the relevant administrative agency for consultation with the Minister of National Defense or the commander of the jurisdictional unit under the former Protection of Military Bases and Installations Act cause or threaten to cause hindrance to military operations (affirmative), and whether discretionary power is granted to the Minister of National Defense or the commander of the jurisdictional unit, etc. regarding such determination (affirmative)

[2] Whether a professional evaluation result of an administrative agency should be respected as much as possible, barring special circumstances (affirmative), and the burden of proof on the existence of special circumstances that deviate from and abused discretionary power (i.e., the claimant) / Whether such a legal doctrine applies likewise to cases where the Minister of National Defense or the commander of the jurisdictional unit, etc. conducted a professional and military emotional evaluation as prescribed by the relevant statutes, such as the Protection of Military Bases and Installations Act (affirmative)

[1] Articles 2 subparag. 6(b) and 8, 4, 5(1)2(c), 6(1) [Attachment 1], 13(1)1, 7, 10(2)1, and 10(1)4 of the former Protection of Military Bases and Installations Act (Amended by Act No. 12902, Dec. 30, 2014; hereinafter “former Military Bases Act”) and Articles 2 subparag. 6(b) and 8, 4, 5(1)2(c), 6(1) [Attachment 1], 13(1)1, 13(2)1, and 10(1)4 of the former Protection of Military Bases and Installations Act; Article 7(2) of the former Enforcement Rule of the Protection of Military Bases and Installations Act (Amended by Act No. 884, Feb. 29, 2016; the Minister of National Defense’s provision of matters necessary for protecting military bases and installations and for smooth performance of military operations; the purpose or risk of aviation operations;

[2] Unless there are special circumstances, such as that there is a serious error in the fact-finding, which is the basis of the determination, or that the determination is objectively unreasonable as it considerably loses validity under the social norms, the court’s propriety should be respected as much as possible. The fact that there are special circumstances that deviate from and abused discretion should be proved by the party who asserts it in accordance with the general principle of the burden of proof distribution.

This legal doctrine applies likewise to cases where the Minister of National Defense or the commander of the jurisdictional unit, etc. has conducted a professional and military emotional assessment as prescribed by the relevant statutes, such as the former Protection of Military Bases and Installations Act (amended by Act No. 12902, Dec. 30, 2014). Therefore, a professional and military determination by the Minister of National Defense or the commander of the jurisdictional unit, etc. should be respected unless there are special circumstances, such as serious errors in the fact-finding based on which the determination was based, or unreasonable or unreasonable, and that there are special circumstances that deviate from or abuse of discretionary power in the administrative disposition based on the determination by the Minister of National Defense or the commander

[1] Articles 2 subparag. 6(b) and 8, 4, 5(1)2(c), 6(1) [Attachment 1], 10(1)4, 13(1)1, 7, and 13(2)1 of the former Protection of Military Bases and Installations Act (Amended by Act No. 12902, Dec. 30, 2014); Article 7(2) of the former Enforcement Rule of the Protection of Military Bases and Installations Act / [2] Article 26 of the Administrative Litigation Act (Amended by Act No. 12902, Feb. 29, 2016); Articles 27 and 30(1) of the same Act; Article 5(1)2(c) of the former Protection of Military Bases and Installations Act (Amended by Act No. 1294, Dec. 30, 2014; Act No. 12931, Jan. 1, 2014>

[2] Supreme Court Decision 2013Du21120 Decided January 28, 2016 (Gong2016Sang, 368) Supreme Court Decision 2016Du57564 Decided June 15, 2018 (Gong2018Ha, 1296)

Plaintiff 1 and three others (Attorney Go-su et al., Counsel for the plaintiff-appellant)

The head of Dong-si Branch Office (Law Firm TELS, Attorneys Lee Jae-in et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Nu30967 decided March 10, 2017

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

The grounds of appeal are examined.

1. Relevant provisions and legal principles

A. According to Article 2 of the former Protection of Military Bases and Installations Act (amended by Act No. 12902, Dec. 30, 2014; hereinafter “Military Bases Act”), “restricted protection zones” refer to the areas necessary for the smooth performance of military operations and the protection of military bases and installations, or the areas that require the safety of local residents, among military bases and installation protection zones (Article 6(b)); and “flying safety zone” refers to the areas designated by the Minister of National Defense pursuant to Articles 4 and 6 for the safe flight of military aircraft during the takeoff and landing of military aircraft (Article 8).

According to Articles 4, 5 (1) 2 (c) and 6 (1) [Attachment Table 1] of the Military Bases Act, the Minister of National Defense may designate an area within 1 km from the outermost boundary line of the relevant military base and installation as restricted protection zones in cases of explosives-related facilities, and may designate flight safety zones by type of air operations bases. According to the main sentence of Article 13 (1) 1 and 7 of the same Act, the head of the relevant administrative agency shall consult with the Minister of National Defense or the commander of the jurisdictional unit, etc., as prescribed by Presidential Decree in cases where he/she intends to grant permission or take other measures (hereinafter referred to as "permission, etc.") concerning the installation of structures, the alteration of topography, etc. within the protection zone, and the consultation with the head of the relevant administrative agency on the construction of buildings, etc., installation or alteration of structures, etc. or the commander of the jurisdictional unit, etc., who intends to consult with the Minister of National Defense or the head of the jurisdictional unit in charge of military operations, as prescribed by Presidential Decree.

B. In full view of the language and text of the above provisions of the Military Bases Act, and the purpose of the Military Bases Act seeking to contribute to national security by prescribing matters necessary for protecting military bases and installations and for smooth conduct of military operations (Article 1), etc., whether an act subject to a request for consultation causes or is likely to cause an impediment to military operations, or threaten to cause an impediment or threat thereof, whether an act subject to such a request for consultation may be resolved, or whether it is likely to interfere with or be mistaken for aeronautical lighting aids, etc., shall be determined by taking into account the duties of the relevant unit, operation plans, types and characteristics of military bases and installations, surrounding environment, impact on the safety of local residents, etc., and shall be deemed to have been granted discretion to the Minister of National Defense or the competent commanding officer, etc.

On the other hand, the result of professional evaluation of the administrative agency’s results should be respected as much as possible, barring special circumstances, such as that there is a serious error in the fact-finding, which is the basis of the determination, or that the determination is objectively unreasonable as it considerably loses validity under the social norms. The fact that there are special circumstances that deviate from and abused discretion, should be attested by the claimant in accordance with the general principle of the burden of proof distribution (see Supreme Court Decisions 2013Du21120, Jan. 28, 2016; 2016Du57564, Jun. 15, 2018).

This legal doctrine also applies to cases where the Minister of National Defense or the commander of the jurisdictional unit, etc. has conducted a professional and military emotional assessment as prescribed by the relevant Acts and subordinate statutes, such as the Military Bases Act. Accordingly, the professional and military determination by the Minister of National Defense or the commander of the jurisdictional unit, etc. shall respect the fact-finding based on which the determination was based, unless there are special circumstances, such as where there are serious errors in the fact-finding or objectively unreasonable or unjust. The fact that there are special circumstances that the administrative disposition based on the judgment by the Minister

2. The judgment of the court below

The court below held that the development act disposition in this case (hereinafter "the development act in this case") based on the opinion of the commander of the jurisdictional unit is unlawful on the following grounds: (a) although the plaintiffs have discretion to the commander of the jurisdictional unit in receipt of the request for consultation; (b) it is difficult to view that the plaintiffs' opinion on the consent of the commander of the jurisdictional unit violates the principle of proportionality in light of the following circumstances: (c) it is hard to see that the construction of bus stops in the meaningful level caused by the light generated or installed by the creation of bus stops; and (d) it is difficult to see that the head of the ○○○ Air Force Operations Group of the Air Force does not evaluate the bus stops that will be created on the land in this case; (d) the characteristics of the bus stops that will be exposed during explosion of explosives; and (e) the specific risks exposed during explosion of explosives; and (e) it applied the explosives risk distance as it is to residential facilities; and (e) there have already been many residential facilities between the land in this case and ammunition.

3. Judgment of the Supreme Court

However, such determination by the lower court is difficult to accept.

A. First, examining the reasoning and records of the lower judgment, the following circumstances are revealed.

(1) The Plaintiffs filed an application for permission to engage in development activities (such as changing the form and quality of land) to create a bus parking site on the instant land.

(2) The specific use area of the instant land is farmland as a natural green area, and its current status is a village and residential facilities, etc. are located in an area near a weak height than the instant land.

(3) The instant land constitutes a limited protection zone under the Military Bases Act (within 1km related to explosives) and a flight safety zone (No. 2). The Defendant requested the head of the Air Force ○○ Air Force (the commander of the jurisdictional unit), who is the commander of the jurisdictional unit, to consult about whether to permit development activities against the

(4) On May 19, 2014, the Defendant rendered the instant disposition against the Plaintiffs on the ground of the Plaintiff’s non-agreement by the head of the air force ○○ Aeronautical Flight Team head to the effect that impact on the flight safety and that the safety distance with the ammunition is not adequate. The content of the non-agreement by the head of the air force ○ ○ Aeronautical Flight Team head is as follows.

In the event of the operation of large buses in the vicinity of the ○ aviation guide, etc., it is likely to obstruct the view of pilots and cause confusion with the runway, and if the weather conditions are bad, it may cause aviation lights. The lighting facilities of the garage at night flight, the headlights of the vehicle, etc. may cause interference with the pilot’s interests in the operation of the aircraft, and the flying-line, etc. may cause interference with the pilot’s interests. Large buses may affect the flight safety by causing interference with the landing when moving △△ school located far from 650 meters away from the runway end, and it is reasonable to apply the U.S. military union facilities regulations that strictly prohibit the installation of facilities within 1 to 3,00ft (914m) even in the △ base operated as a Korea-U.S. joint operation base.

○ The instant land is located within the limited protection zone (within 1km related to explosives), and the installation of new buildings and structures is prohibited, and the instant land is located at a distance of about 800 meters from the ammunition level and is in violation of the “Standards for the Safety Control of Powders and Explosives” (hereinafter referred to as the “Standards for the Safety Control of Powders and Explosives”) (the two distances of the base ammunition (the safety distance of explosives) are 960 meters).

(5) According to the air traffic crime, the service distance means the minimum permissible distance to be maintained between public roads and explosives dangerous areas, while the buildings are fixed and exposed to danger while trains and vehicles are temporarily exposed to danger, the service distance is the distance equivalent to 60% of the residential facilities distance (the minimum permissible distance to be maintained between explosives storage and work facilities and residential facilities).

(6) The △○○○ Military Operations Group stationed in the air force is the Korea-U.S. co-operation base jointly used with the U.S. military. On July 28, 1976, the restricted protection zone (limited to not more than 1km) was designated on March 2, 2001, respectively. The air force also requested removal of the buildings, the construction permission of which was granted within the flying safety zone (No. 2) on the basis of the provisions of the United States-U.S.A. Facilities.

(7) The non-party witness, who is a combat aircraft pilot belonging to the Air Force ○○○ Air Force, testified to the effect that “When weather is not good, the non-party, who is a combat aircraft pilot, shall report one or two lights near the runway extension line, and attempted to confirm and land the runway.” The non-party testified to the effect that “The non-party may attempt to land by misunderstanding the name of the garage, bus headlight, etc. as aviation lighting as aviation lighting.”

B. Examining these circumstances in light of the legal principles as seen earlier, the following is determined.

(1) The Nonparty’s testimony by the witness that the light around the runway with the view of the pilot may be mistaken for aviation guidance, etc. is difficult to find any reasonable and non-party’s rejection of this.

(2) Considering the unique nature of the post-U.S. joint operation base, it cannot be deemed unlawful and unreasonable to determine the basis of the regulations on the U.S. military associated facilities in preparation for combined operations with the U.S. military.

(3) Even if the plaintiffs merely create the land of this case as a bus garage and do not construct a building, it is anticipated that a large number of large buses stop at a garage and a large number of persons, such as drivers, etc., will reside in the garage, so the land of this case seems to have a higher risk than that of the public road provided by air traffic offenders. Therefore, it cannot be deemed that the public road of this case should be applied as it is.

(4) In a situation where it is impossible to confirm how the village surrounding the instant land, residential facilities, etc. were formed, how the commander of the jurisdictional unit notified the consent, and what reasons the reason is, the circumstance that village and residential facilities, etc. are already formed in the vicinity of the instant land cannot be readily concluded that the risk caused by the explosion is not increased due to the development of the instant land.

(5) In the event of the installation of bus bus stops on the instant land, it is highly likely that an application for permission to engage in development activities may increase the same content in the neighboring land, and due to the occurrence of serious risks to flight safety should also be considered.

(6) The instant land constitutes a limited protection zone under the Military Bases Act and a flight safety zone. Even if the availability of the instant land was restricted according to the designation of such zone, the restriction on land use for public interest purposes to the extent that the instant land may continue to be used for previous permitted purposes constitutes social constraints to be accepted by landowners (see, e.g., Constitutional Court en banc Order 89Hun-Ma214, Dec. 24, 1998). Even if the Plaintiffs suffered disadvantages due to the instant disposition, even if the disadvantages suffered from the restriction on the use of the instant land due to the restriction on the use of the instant land, it is difficult to view that the disadvantages are larger than the need for public interest, such as ensuring smooth performance of military operations and preventing damage to human lives and

(7) Ultimately, the head of the ○○○ Air Force’s Air Force shall notify the Defendant of his/her consent based on a high level of professional and military judgment. There is no circumstance to deem such judgment as either factual basis or objectively unreasonable or unfair in light of the standards, procedures, methods, and contents of the judgment. Therefore, it cannot be readily concluded that the instant disposition based on the opinion of the head of the ○○ Air Force’s Air Force’s Air Force’s Air Force’s Air Force’s Air Force’s Air Force’s Air Force’s Air

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on the consultation of the commander of the jurisdictional unit under the Military Bases Act, thereby adversely affecting the conclusion of the judgment, solely on the grounds stated in its reasoning, on the ground that the assent of the head of the ○○○ Military Operations Group was unlawful.

4. Conclusion

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 Min You-sook (Presiding Justice)