Supreme Court Decision
99Du2970 Delivered on July 27, 2001[Revocation of Approval
for Modifying the Basic Design of Yongwha Facilities
at the Facility-Concentrated District]
[Main Issues]
[1]
In the matter regarding a facility-concentrated district development project at
a national park, subjected to an Environmental Impacts
Assessment("EIA"): whether the environmental interests of the
residents in the EIA subject area regarding an approval to modify the facilities'
basic design, etc., are direct and concrete interests protecting each
individual separately (affirmative) and; whether the above mentioned residents
have standing in seeking to revoke the agency's action, on the grounds that
their interests were injured (affirmative)
[2]
The legal nature of the approval of the park facilities' basic design and the
modification design regarding the National Park project; the judicial review
issues on these approvals, and; if the action had been based on the misunderstanding
of facts, whether the administrative agency's discretionary action is illegal
due to the discretionary power being deviated or abused (affirmative)
[3]
The case ruling that in relation to the development project of a
facility-concentrated district in a national park, as long as the Minister of
Environment was consulted regarding the approval for the modification of the
facilities' basic plan, even if the National Park's Management Authority
("NPMA") took a disposition contradicting the opinion based on the
Minister of Environment's environmental impact assessment, the disposition
cannot be held to be illegal
[4]
The meaning of "the illegality inherent in the adjudication itself"
under Article 19 of the
Administrative Litigation Act("
[Summary of Decision]
[1]
In accordance with the relevant articles in the former NPA(amended by Act No.
5122 of December 30, 1995), the former Enforcement Decree of NPA(amended by
Presidential Decree No. 15106 of July 1, 1996), the former Enforcement Rule of
NPA (amended by the order of the Minister of Home Affairs No. 687 of July 3,
1996), the former Environmental Impact Assessment Act("EIAA")
{repealed by Article 2 of Addenda of the Act on Assessment of Impacts of Works
on Environment, Traffic, Disasters, Etc ("AAIWETD") of December 31,
1999}, and the former Enforcement Decree of EIAA (repealed by Article 2 of
Addenda of the Enforcement Decree of AAIWETD of December 31, 2000), the Yongwha Facility-Concentrated District Development Project
in this case involves an area exceeding 100,000 square meters, and is thereby
subjected to an EIA. The defendant must therefore perform an EIA under the EIA
Act, and must reflect the contents of the consultation in the project plan when
conducting the present case's modification disposition, etc. Therefore, besides
the 1993 NPA, the EIA Act must also be considered to be a relevant statute that
directly affects the present case's modification disposition, etc. The purport
of the relative 1993 NPA and EIAA articles, is to protect the individual
interests of the residents living in the EIA subject area from receiving direct
and serious environmental injuries exceeding "the limit of tolerance"
compared to the situation before the development, and ensuring the protection
of the residents' right to live in a pleasant environment. Therefore the
environmental interest of the above residents in regard to the alteration
approval of the facilities' basic design in the EIA region, are viewed has
being direct and concrete interest protecting each residents individually. If
the environmental interests of the residents in the EIA subject area expected
to suffer direct and serious environmental injuries, because of the present
case's Yongwha Facility-concentrated District
Development Project, are or are in danger of being aggrieved by the present
case's modification disposition, the residents shall be deemed to have standing
to seek the revocation of the present case's modification disposition and the
present case's adjudication that had dismissed the petition of the
administrative appeal seeking to revoke that modification disposition.
[2]
The execution of the natural park project is an action that affects the
preservation of the national soil and the protection of the environment, and
therefore the approval for the park facilities' basic plan and the modification
plan are judged to be a form of discretionary action which must be decided
after considering the status, location and surrounding circumstances of the
project site, the appropriateness of the time and executor of the project, the
content, the scale and the method of that project as shown in the project plan,
and its effect on nature and the environment, collectively. Although the
judicial review of the discretionary actions as stated above, is to only
examine whether there was illegality of deviating or abusing the discretionary
power due to the action being based on misunderstanding of facts, violation of
the principle of proportion and equality, violation of the purpose of the action,
or unjust motives; however, if as a result of the judicial review, the discretionary
action of an administrative agency is found to have been based on
misunderstanding of facts, etc., the action cannot avoid revocation because of
it being illegal due to deviation or abuse of discretionary power.
[3]
The case ruling that in relation to the development project of a
facility-concentrated district in a national park, as long as the Minister of
Environment was consulted on the approval for the modification of the
facilities' basic plan, even if the National Park's Management Authority("NPMA")
took a disposition contradicting the opinion the Minister of Environment's EIA,
the act cannot be held to be illegal unless special circumstances such as the
contents of EIS Statement are extremely deficient that the legislative intention
of the EIA system's existence cannot be achieved
[4]
In accordance with Article 19 of
the ALA in regard to the adjudication of an administrative appeal,
when the adjudication itself has a proper illegality, meaning that illegality
exists in regard to the subject, procedure, form or content of the adjudication
itself, one may seek to revoke it by instituting an appeal litigation. However,
an adjudication to dismiss the petition for administrative appeal when it is
not illegal, will deprive a petitioner of the right to receive a review on his
or her merits, falling under the case where there is a proper defect that had
not existed in the original disposition: therefore, the adjudication involved
in this case is subjected to a revocation litigation.
[Reference Provisions]
[1] Article 1, Article 10
(1), Article 15 (2), Article 16, Article 21, Article 21-2(repealed), and
Article 22 of the former Natural Parks Act(amended by Law No. 5122 of December
30, 1995), Article 8-2 of the former Enforcement Decree of the Natural Parks
Act(amended by Presidential Decree No. 15106 of July 1, 1996), Article 7,
Article 8 (2) of the former Enforcement Rule of the Natural Parks Act(amended
by the Order of the Minister of Home Affairs Decree No. 687 of July 3, 1996), Article
1(see Article 1 of the Act on Assessment of Impacts of Works on Environment,
Traffic, Disasters, Etc., referred to as "AAIWETD"), Article 4(see
Article 4 of AAIWETD), Article 8(see Article 5 of AAIWETD), Article 9(see
Article 6 of AAIWETD), Article 16(see Article 17 of AAIWETD) and Article 19(see
Article 21 of AAIWETD) of the former Environmental Impact Assessment Act (refered to as "EIAA") {repealed by Article 2 of
Addenda of AAIWETD of December 31, 1999}, The Annexed Table 1 (Ka)(4) of Article
2 (2) of the former Enforcement Decree of EIAA(repealed by Article 2 of Addenda
of the Enforcement Decree of AAIWETD of December 30, 2000) (see the appended
Table 1 (Ka) of Article 2 (3) of the Enforcement Decree of AAIWETD), Article
12, Article 19 of the Administrative Litigation Act / [2] Article 1, Article 10
(1), Article 15 (2), Article 16,
Article 21, Article 21-2(deleted), and Article 22 of the former Natural Parks
Act(amended by Law No. 5122 of December 30, 1995), Article 8-2 of the former
Enforcement Decree of the Natural Parks Act(amended by Presidential Decree No.
15106 of July 1, 1996), Article 7, Article 8 (2) of the former Enforcement Rule
of the Natural Parks Act(amended by the Minister of Home Affairs Decree No. 687
of July 3, 1996), Article 1, Article 27 of the Administrative Litigation Act /
[3] Article 1, Article 10 (1), Article 15 (2), Article 16, Article 21, Article
21-2(deleted) and Article 22 of the former Natural Parks Act(amended by Law No.
5122 of December 30, 1995), Article 8-2 of the former Enforcement Decree of the
Natural Parks Act(amended by Presidential Decree No. 15106 of July 1, 1996),
Article 7, Article 8 (2) of the former Enforcement Rule of the Natural Parks
Act(amended by the Minister of Home Affairs Decree No. 687 of July 3, 1996),
Article 1(see Article 1 of AAIWETD), Article 4 (see Article 4 of AAIWETD), Article
8(see Article 5 of AAIWETD), Article 9(see Article 6 of AAIWETD), Article
16(see Article 17 of AAIWETD) and Article 19(see Article 21 of AAIWETD) of the
former Environmental Impact Assessment Act(repealed by Article 2 of Addenda of
the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters,
Etc of December 31, 1999), The appended Table 1 (Ka)(4) of Article 2 (2) of the
former Enforcement Decree of EIAA(repealed by Article 2 of Addenda of the
Enforcement Decree on Assessment of Impacts of Works on Environment, Traffic,
Disasters, etc. of December 31, 2000) (see the appended Table 1 (Ka) of Article
2 (3) of the Enforcement Decree of AAIWETD), Article 40 of the former
Government Organization Act(wholly amended by Law No. 5229 of February 2,
1998), Article 1, Article 27 of the Administrative Litigation Act / [4] Article
2 (1) 1 of the Administrative Litigation Act
Article 1 of the former
Natural Parks Act
(amended by Act No. 5122 of December 30, 1995) (Purpose) The purpose of this
Act is to provide for matters concerning the designation, conservation and
management of natural parks with the aim of contributing to preservation of
health, improvement of recreational and emotional life by preserving the
natural scenary and seeking to use them in an
appropriate manner.
Article 10 of the former
Natural Parks Act
(amended by Act No. 5122 of December 30, 1995) (Determination of Park Planning
for National Parks)
(1) The Minister of Home
Affairs shall determine a park planning for national parks.
(2)-(3)
<omitted>
Article 15 of the former
Natural Parks Act
(amended by Act No. 5122 of December 30, 1995) (Contents of Park Planning) (1)
<omitted>
(2) When a park planning
is determined, the determiner shall pay attention to forest management and
resources cultivation(including the resources for
tourism) and assess in advance an impact caused by the park planning on natural
environment in accordance with the Presidential Decree.
Article 16 of the former
Natural Parks Act
(amended by Act No. 5122 of December 30, 1995) (Specific Use Districts) (1) The
Minister of Home Affairs, the Mayor/Do governor, or the head of Gun shall
determine the specific use district falling under each of the following items
in the park planning in order to effectively conserve and exploit natural parks :
1. Nature conservation
district: The area, which is in need of special protection, as a place which
keeps the originality of protected natural state, has a habitat of animals and
plants to protect, and has the picturesque natural scenery.
2. Nature environment
district: All districts with the exception of the Nature conservation district,
village district, and facility-concentrated district.
3. village
district: The area which is needed to be kept and managed as a base for village
life of residents and farmland or a living base for farmers and fishermen.
4. Facility-concentrated
district: The area on which park facilities are concentrated or which shall be
concentrated to provide conveniences for persons entering a natural park and to
conserve and manage such natural park.
(2) Standards for the
permissible act in the specific use district referred to in paragraph (1) shall
be as follows: (attached Table : in next page)
(3) The Minister of Home
Affairs, the Mayor/Do governor, or the head of Gun may subdivide the districts
referred to in paragraph (1) in the park planning.
|
|
Permitted
Act |
|
1.
Natural Conservation District |
(1)
Activities deemed necessary for scientific research or nature protection. (2)
Minimum installation and project of the park facilities. (3)Minimum
installation of military facilities, communications facilities, navigation
facilities, and water source protection facilities, etc. that are deemed
impossible to install in any other district. (4)
Installation of facilities and their supporting facilities used for restoring
temples that has been recommended by the Minister of Culture and Sports and
passed by the concerned Do governor, and for holding Buddhist rituals and
services inside the temples. (5)Forestry
road installations, reforestations and deforestation under the Forest Act,
within the limits of not greatly damaging the original state of natural
preservation, and the beauty of natural scenery. |
|
2.
Natural Environment District |
(1)
Activities permitted inside the nature conservation district. (2)
Primary industry activities and grassland cultivation activities which do not
alter the classification of land(existing
classification of land). (3)
Installation of park facilities that are not concentrated, and park project activities. (4)
Reforestation, deforestation, erosion-control activities and other minimum
activities or installation of facilities necessary for national defense,
national economy and public interest. (5)
Extension, renovation and reconstruction of structures existing in the
district before the area gets designated as a natural park, and installation
of supporting facilities within the scale in harmony with the natural scenery
as prescribed by the Order of the Ministry of Home Affairs. |
|
3.
Village District |
(1)
Activities permitted inside the nature conservation district and the village
district. |
|
|
Permitted
Act |
|
|
(2)
Installation of facilities necessary to residential buildings and necessary
for residence, and activities to create living environment. (3) Installation
of supporting facilities and activities functionally necessary for the
natural village district. (4)
Home industry that does not cause pollution. (5)Installation
of facilities such as hospitals, pharmacies, barbershops, and facilities
selling commodities, etc. with the scale prescribed by the Order of the
Ministry of Home Affairs. |
|
4.
Facility- Concentrated District |
Activities
regarding the installation of park facilities and their supporting facilities
appropriate for visits and recreations. |
Article 21 of the former
Natural Parks Act
(amended by Law No. 5122 of December 30, 1995) (Implementation of Park Projects
and the Manager of Park Facilities)
Park projects and park facilities shall be undertaken and managed by
every park management authority except for the existence of special provisions
in this act or other acts such as the Forest Act.
Article 21-2 of the
former Natural Parks Act
(amended by Law No. 5122 of December 30, 1995) (Basic Design) (1) When the park
management authority(the park project executers and park facility managers
stipulated in Article 22 included) institutes a new park facility or develops a
facility-concentrated-district by a park related project stipulated in Article
21, they must prepare in advance, the basic design of the park facility in
regard to its arrangement plan, basic structure, shape, material, color of the
outer walls, etc. and they must give public notice of it.
(2) The basic design
stipulated in paragraph (1) must be established in harmony with the park's
natural scenery.
(3) The detailed standard
and notice method of the basic design stipulated in paragraph (1) shall be
prescribed by the order of the Minister of Home Affairs.
Article 22 of the former
Natural Parks Act (amended
by Law No. 5122 of December 30, 1995) (Implementation of Park Projects and
Management of Park Facilities by Non-Park Management Authority) Any person who
is not a park management authority shall, when he intends to undertake a park
project or manage park facilities installed by a park management authority,
obtain permission therefor from a park management
authority in accordance with the Presidential Decree.
Article 8-2 of the former
Enforcement Decree of the Natural Park Act (amended by Presidential Decree No.
15106 of July 1, 1996) (Assessment of Impact on Natural Environment) (1) Every
park management authority shall, when it decides on or alter the park planning,
assess matters falling under each of the following items in accordance with
Article 15 (2) of the Act: Provided, That the same shall not apply to
alteration of trivial matters prescribed by the Order of the Minister of Home
Affairs.
1. The survey of current
environmental state;
2. The analysis of
changes in the natural ecosystem;
3. The analysis of
changes in atmosphere and water quality;
4. The analysis of waste
discharge; and
5. Ways to reduce the
adverse impact on environment.
(2) The Parks Management
Authority shall consult with the The Minister of
Environment on the result of assessment in paragraph (1).
Article 7 of the former
Enforcement Rule of the Natural Parks Act (amended by the Order of the
Minister of Home Affairs Decree No. 687 of July 3, 1996) (Detailed Standard for
the Basic Design) (1) The detailed standard for the basic design as referred to
in paragraph(5) of Article 21-2 of the Act, is as following.
1. When a building is
constructed in a facility-concentrated district, the building coverage and
height must pursue the standards provided in the following items. However, in
respect to the buildings constructed before December 31, 1987 which exceed the
building coverage prescribed in a. through d., the previous building coverage
of the concerned building can be applied within the limits of 90/100.
(Ga)
The buildings in a commercial facility area must fulfill the following
requirements: a site area of not less than 330 square meters, a building
coverage of not more than 60/100, and height that is not higher than three
stories. However, the buildings in the district designated as hot spring
districts pursuant to Article 3 of the Hot Spring Act, or in coastal parks and
marine parks district can be up to five stories high.
(Na) The buildings in an
accommodation facility area must fulfill the following requirements: a site
area of not less than 400 square meters(however, for
tourist accommodation facilities pursuant to Tourism Promotion Act, not less
than 600 square meters), a building coverage of not more than 60/100, and
height that is not higher than three stories. However, tourist accommodation
facilities pursuant to the Tourism Promotion Act, buildings in the district
designated as the hot spring district pursuant to Article 3 of the Hot Spring
Act and building in coastal parks and marine parks, can be up to five stories
high.
(Da)
The building coverage of buildings in a public facility area must not be more
than 50/100, and the height no more than three stories high.
(Ra) Of the buildings in
a facility-concentrated-district that has not been prescribed in a. through c.,
sanitariums and training institutes must fulfill the following requirements: a
site area of not less than 600 square meters, a building coverage of not more
than 50/100, and height that is not higher than three stories. Of the above
buildings, buildings other than the sanitariums and training institutes must
fulfill the following requirements: a building coverage of not more than 20/100
and a height that is not higher than three stories.
2. For buildings
constructed outside a facility-concentrated district, the building coverage
shall not exceed 20/100, and the height shall not exceed three stories.
However, tourist accommodation facilities constructed within coastal parks and
marine parks, can be up to five stories high.
3.The park management
authority shall decide matters regarding each park facility's basic structure,
shape, utilized materials, colors of the outer walls, etc.
(2) If someone other than
the park management authority intends to conduct a park project differently
from what has been stated in the park management authority's basic design
notice in accordance with paragraph 1 of Article 21-2 of the Act, or intends to
independently construct park facilities before the park authority announces
their basic design notice, a basic design must be drafted and approved by the
park authority before hand.
Article 8 of the former
Enforcement Rule of the Natural Parks Act (amended by the Order of the
Minister of Home Affairs Decree No. 687 of July 3, 1996) (Public Notice, etc.
of Basic design) (1) The public notice in accordance with paragraph (1) of
Article 21-2 of the Act, shall be announced by the Official Gazette and within
it, the intent to display its content to the public must be clearly stated.
(2) When the park
management authority gives a public notice in accordance with paragraph (1),
they must provide the contents of the basic design and the relevant documents,
and display them to the public over a period of time not less than 20 days.
(3) If the park
management authority makes adjustments to the basic design, they must give
public notice of the adjustment and display it corresponding to the standards
provided in paragraph (1) and paragraph (2). However, trivial
adjustments that does not effect the contents of the basic design, are
an exception.
Article 9 of the former
Enforcement Rule of the Natural Park Act (amended by the Order of the
Minister of Home Affairs Decree No. 687 of July 3, 1996) (Application Form for
the Permission to Conduct Park related Projects, etc.) (1) The application form
for the permission to conduct park related projects or to manage park
facilities as stipulated in paragraph (1) and (2) of Article 15 of the Decree, is as presented in the attachment No. 1.
Article 1 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda
of the Act on Assessment of Impacts of Works on Environmental, Traffic,
Disasters, Etc of December 31, 1999) (Purpose) The purpose of this Act is, in
devising and executing the business plans subject to an environmental impact
assessment, to maintain and make the pleasant environment in the way of
assessing and reviewing in advance the impacts of relevant projects on the
environment, and by making them an environmentally sound and sustainable
development.
Article 4 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda
of the Act on Assessment of Impacts of Works on Environmental, Traffic,
Disasters, Etc of December 31, 1999) (Projects Subject to Impact Assessment,
etc.) (1) The projects on which the environmental impact assessment is to be
implemented (hereinafter referred to as the "projects subject to an
assessment"), shall be as follows:
1. Urban development;
2. Formation of
industrial location and industrial complexes;
3. Development of energy;
4. Construction of
harbors;
5. Construction of roads;
6. Development of water
resources;
7. Construction of
railroads (including urban railroads);
8. Construction of
airports;
9. Utilization and
development of rivers;
10. Reclamation works or
11. Development of
tourist complexes;
12. Installation of
gymnastic facilities;
13. Development of
mountainous areas;
14. Development of
designated regions;
15. Installation of
wastes treatment facilities and sewage disposal facilities
16. Other projects that
have an impact on the environment, which is prescribed by the Presidential
Decree.
(2) The scope of the
projects subject to an assessment shall be prescribed by the Presidential
Decree.
(3) In case where
necessary to implement the impact assessment on a project which does not fall
under the scope of projects subject to an assessment as referred to in
paragraph (2) in consideration of the regional characteristics, the Special
Metropolitan City, other Metropolitan Cities or Dos (hereinafter referred to as
the "Cities/Dos") may
prescribe the scope of the
projects subject to an assessment by the Municipal Ordinances of the competent
Cities/Dos.
(4)If the Cities/Dos
execute the environmental impact assessment under the provisions of paragraph
(5), the assessment procedures or other necessary matters shall be prescribed
by the Municipal Ordinances of the competent Cities/Dos.
Article 8 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda
of the Act on Assessment of Impacts of Works on Environmental, Traffic,
Disasters, Etc of December 31, 1999) (Preparation of Assessment Statement) If a
project executor intends to execute the projects subject to an assessment, he
shall, pursuant to the Presidential Decree, prepare a statement concerning the
environmental impact assessment (hereinafter referred to as an "assessment
statement").
Article 9 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda
of the Act on Assessment of Impacts of Works on Environmental, Traffic,
Disasters, Etc of December 31, 1999) (Collection of Opinions) (1) In preparing
an assessment statement, a project executor shall, under the conditions as
prescribed by the Presidential Decree, hold an explanatory hearing or a public
hearing, etc. and shall hear the opinions of residents in the Subject Area of
Environmental Impacts Assessment and include them in the content of an
assessment statement. In this case, if there is a request from the residents
within the extent prescribed by the Presidential Decree, a public hearing shall
be held.
(2) In case where a
project executor intends to collect the opinions under paragraphs (1), he shall
prepare a draft of an assessment statement in advance.
(3) The method and
procedure of collecting the opinions and the method of preparing a draft of an
assessment statement under paragraphs (1) through (2), and other necessary
matters shall be prescribed by the Presidential Decree.
Article 16 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda
of the Act on Assessment of Impacts of Works on Environmental, Traffic,
Disasters, Etc of December 31, 1999) (Consultation, etc. on Assessment
Statement) (1) The project executors
who is to obtain the approval, authorization, permit, license or decision, etc.
(hereinafter referred to as the "approval, etc.") on the projects
subject to an assessment or the plans for such projects (hereinafter referred
to as the "project plans, etc."), shall prepare the assessment statement
under Article 8 and submit it to the agency granting the approval, etc.
(hereinafter referred to as an "approving agency").
(2) The head of an
approving agency and a project executor who is not required to obtain the
approval, etc. (hereinafter referred to as the "head of an approving
agency, etc."), shall consult with the Minister of Environment on the
assessment statement submitted under paragraph (1) or prepared under Article 8.
In this case, the head of an approving agency may consult on it, annexing his
opinion on an assessment statement.
(3) The time for
submitting an assessment statement and the time for requesting a consultation
under paragraphs (1) and (2), and other necessary matters shall be prescribed
by the Presidential Decree.
Article 19 of the former
Environmental Impact Assessment Act (repealed by Article 2 of Addenda of
the Act on Assessment of Impacts of Works on Environmental, Traffic, Disasters,
Etc of December 31, 1999) (Confirmation and Notification with Respect to
Whether Contents of Consultation are Reflected) (1) The head of an approving agency
shall, in case where there is an application for approval, etc. of the project
plans, etc., confirm whether the contents of consultation are reflected in the
project plan, etc., and if the contents of consultation are not reflected, he
shall have them reflected and thus approve the project plans, etc.
(2) In case where the
head of an approving agency grants approval, etc. for the project plans, etc.,
or in case where a project executor who is not required to obtain the approval,
etc. reflects the contents of consultation in the project plan and confirms the
plan, they shall notify the Minister of Environment on an assessment statement
of the relevant contents.
Article
2 of the former Enforcement Decree of the Environment Impact Assessment Act (repealed by Article 2 of
the Addenda of the Enforcement Decree of the Act on Assessment of Impacts of
Works on Environment, Traffic, Disasters, Etc. of December 30, 2000) Projects,
etc.
Subject to Impact Assessment and the Scope of Projects) (1) <omitted>
(2) The scope of projects
subject to the execution of impact assessment under Article 4(2) of the Act
shall be as the attached Table 1 : Provided, That this
shall not apply to the projects falling under any of the following items:
1. Projects of an
emergency countermeasure against disaster under Article 36 of the Natural
Disaster Act ; and
2. Projects on which the
Minister of National Defense has made a consultation with the Minister of
Environment as he deems that a protection of military secrets is needed therefor, or that they are urgently necessary for the execution
of military operations.
[the
appended Table 1] (Scope
of Projects Subject to an Environmental Impact Assessment, Submit Time of the Assessment
and Time for Requesting Consultation ; related Article
2 and Article 9)
|
(Ka)
Development of Tourist Complex |
(1)
Tourism projects under Article 2,1. of the Tourism
Promotion Act, involving a gross area not less than 300,000 square meters (2)
Projects constructing tourist resorts and tourist complexes under Article 2,3. and Article 2,4. of the
Tourism Promotion Act, involving an area not less than 300,000 square meters (3)
The hot spring development plan under Article 7(1) of the Hot Spring Act involving
an area not less than 300,000 square meters (4)Facility-concentrated
district under Article 16(1)4 of the NPA or the park facilities under Article
2,7. of the same Act, involving a construction area
not less than 100,000 square meters, (5)Amusement
park under Article 2(1)1.b of the Urban Planning Act, involving a facility
area not less than 100,000 square meters, |
¢ªPrior to the approval
of a project plan under Article 4(4) of the Tourism Promotion Act. ¢ªPrior to the approval
of a Construction Plan under Article 24(1) of the Tourism Promotion Act ¢ªPrior to the approval
of a development plan under Article 7(1) of the Hot Spring Act ¢ªPrior to the decision
of a Park Plan under Article 10 through 12 of the NPA ¢ªPrior to the
authorization of executing the plan under Article 25 of the Urban Planning
Act |
|
|
(6)City
park whose construction area is in excess of 250,000 square meters, under
Article 2,1. of the |
¢ªPrior to the decision
of a construction plan under Article 4(5) of the NPA |
Article 40 of the former
Government Organization Act
(wholly amended by Law No. 5229 of February 2, 1998) (Ministry of Environment) The
Minister of Environment shall take charge of the affairs concerning the
preservation of the natural and living environment and the prevention of
environmental pollution.
Article 1 of the
Administrative Litigation Act (Purpose) The purpose of this Act is to relieve
citizens from the infringement of their rights or interests by the illegal
dispositions of administrative agencies and the exercise or non-exercise of
public power, and settle properly disputes over the rights involved in public
law or the application of law, through administrative litigation procedures.
Article 2 of the
Administrative Litigation Act (Definitions) (1) For the purpose of this Act, the
definitions of terms shall be as follows:
1. The term
"disposition, etc." means the exercise of or refusal to exercise
public power by an administrative agency as function of law enforcement in
relation to a specific fact, other similar administrative actions (hereinafter
referred to as the "disposition") and an adjudication on the administrative
appeal; and
2. <omitted>
(2) <omitted>
Article 12 of the
Administrative Litigation Act (Standing to Sue) The
revocation litigation may be instituted by a person having legal interests to
seek the revocation of a disposition, etc. The same shall also apply to a
person with legal interests to be restored by the revocation of a disposition
even after the effect of such a disposition, etc. is extinguished by the lapse
of period, the execution of disposition, etc. and other causes.
Article 19 of the Administrative Litigation Act (Objects
of Revocation Litigation) The disposition, etc. shall
be subject to a revocation litigation: Provided, That in case of a litigation
instituted to seek the revocation of an adjudication, it is permitted only when
a reason exists that the adjudication itself has a proper illegality.
Article 27 of the
Administrative Litigation Act (Revocation of Discretionary Disposition) The court may revoke even the discretionary disposition by
an administrative agency when such a disposition is exercised beyond the limit
of its discretion or the discretion is abused.
[Reference Cases]
[1] Supreme Court
Decision 97Nu3286 delivered on April 4, 1998 (Gong1998Sang, 1514), Supreme
Court Decision 97Nu19588 delivered on September 4, 1998(Gong1998Ha, 2423),
Supreme Court Decision 97Nu19571 delivered on September 22, 1998(Gong1998Sang,
2589), Supreme Court Decision 97Nu5503 delivered on October 20, 1998 / [2] [3]
Supreme Court Decision 99Du5092 delivered on July 27, 2001 / [2] Supreme Court
Decision 98Du13553 delivered on December 8, 1998(Gong1999Sang, 149), Supreme
Court Decision 98Du17593 delivered on February 9, 2001(Gong2001Sang, 650),
Supreme Court Decision 99Du8589 delivered on July 27, 2001 / [3] Supreme Court
Decision 97Nu19571 delivered on September 22, 1998) (Gong1998Ha, 2589), Supreme
Court Decision 99Du9902 delivered on June 29, 2001(Gong2001Ha, 1750) / [4]
Supreme Court Decision 96Nu14661 delivered on September 12, 1997(Gong1997Ha,
3142)
[Plaintiff-Appellee] Roh Hyung-woo
and 171 others (Law Firm Il-shin, Attorneys Kim Jong-chul
and 2 others, Counsel for plaintiff-appellee)
[Dependant-Appellant] Minister of the Department of Environment (formerly
Minister of the Department of Home Affairs)
[Supplementary Intervenor for
Defendant-Appellant] Landlords'
Union of Facility-Concentrated District at Yongwha
Spa in
[Judgment of the court below] Seoul High Court Decision 97Gu31597 delivered on
January 20, 1999
[Disposition]
All
appeals shall be dismissed. Among the costs of this appeal, those due to the
supplementary intervention shall be assessed against the supplementary intervenor for the defendant, and the rest shall be
assessed against the defendant-appellant. "Landlords Union of Yongwha Facility- Concentrated District in Songnisan National Park" mentioned in page 1 of the
court below's decision, will be amended as "Landlords
Union of Facility- Concentrated District at Yongwha Spa
in Songnisan National Park."
[Reasoning]
The
reasons for appeal (all reasons for appeal supplementary statements, etc.,
submitted after the submission date of the appeal reasons, are only reviewed within the scope of it supplementing the reasons for appeal)
are examined as follows.
1.
According to the records, on February 5, 1993, as the supervisor of the
national park, the Minister of Home Affairs made a disposition to approve the
basic design of facilities at Yongwha
facility-concentrated district in the Songnisan
National Park(hereinafter referred to as "the
present case's original disposition") at the request of the defendant's
supplementary intervenor (hereinafter referred to as
"the intervenor"). The contents of the
approval included 102 buildings facilities, 348,087m2 of annual construction
area, 5,846 m3 of discharge water per day, and 10ppm of biochemical oxygen
demand (BOD) from the discharged water.
Afterwards,
the Minister of Environment returned a response stating that the
facility-concentrated district development project is subjected to an EIA and
accordingly the Minister of Home Affairs made the intervenor
prepare a EIA Statement and consult the Environment
Impact Assessment with the defendant. After this, on December 20, 1995, the
Minister plan of Home Affairs approved the modification of the basic design(hereinafter referred to as "the present case's
modification disposition"), the contents of the modification being: the
reduction of total construction area to 266,289 m2, reduction of discharge
water to 2,197m3 per day, intensification of the discharge water BOD level to
1ppm and utilization of the Reverse Osmotic Method to treat waste water.
Subsequently,
on May 9, 1996, the president of the National Park Management
Corporation(hereinafter referred to as "the president of the
Corporation") permitted the intervenor to
execute the park project to lay the foundation of the project in the facility-concentrated
district, under the condition that the intervenor
will satisfy the terms of the present case's disposition and perform the
contents that was layed out in the EIA having been
consulted with the Minister of Environment, etc(hereinafter referred to as
"the disposition for permit in the present case").
However,
on June 7, 1996, as 1825 residents including the plaintiffs, who lived in the Sinwolcheon area which is situated approximately 2km from
the facility-concentrated district, filed an administrative appeal to seek to
revoke the present case's modification disposition and the president of the
Corporation's permit on the execution of the park project mentioned above, on
March 26, 1997, the Minister of Home Affairs made an adjudication revoking the
above mentioned permit, and on May 21, 1997 the minister made an adjudication
dismissing the petition to review the present case's modification disposition
(hereinafter the May 21, 1997 dismissal adjudication will be referred to as
'the present case's adjudication'), on the grounds that there is no interest in
seeking to revoke the present case's modification disposition, since: the
revoke of the present case's modification disposition will restore the effect
of the present case's original disposition, resulting in a more unfavorable
condition for the petitioner of the administrative appeal, and; most of the
petitioner's intended purpose for the administrative appeal were substantially
achieved by the Minister of Home Affairs's
adjudication to revoke the permit
to execute the park project mentioned above.
Meanwhile,
in accordance with the Government Organization Act Amendment (Law No.5529 of
February 28, 1998), the tasks regarding natural parks that had previously been
entrusted to the Minister of Home Affairs had been transferred to the
defendant.
2.
In accordance with the relevant articles in the 1993 NPA(amended
by Law No.5122 of Dec. 30, 1995); the enforcement decree of the above
NPA(amended by Presidential Decree No.15106 of July 1, 1996); the enforcement
rule of the above NPA (before being amended by the order of the Minister of
Home Affairs, Decree No.687 of July 3, 1996); the old EIAA (repealed by Article
2 of AAIWETD Addenda, Law. No 6095 of December 31, 1999), and; the Enforcement
Decree of the above EIAA (repealed by Article 2 of AAIWETD Addenda,
Presidential Decree No. 17089 of December 31, 2000):
The
Yongwha Facility-Concentrated District Development
Project in this case involves an area exceeding 100,000 square meters, and is
thereby subjected to an EIA. The defendant must therefore perform an EIA under
the EIA Act, and must reflect the contents of the consultation in the project
plan when conducting the present case's modification disposition, etc.
Therefore, besides the 1993 NPA, the EIA Act must also be considered to be a
relevant statute that directly affects the present case's modification
disposition, etc.
The
purport of the relative 1993 NPA and EIAA articles, is to protect the
individual interests of the residents living in the EIA subject area from
receiving direct and serious environmental injuries exceeding 'the limit of
tolerance' compared to the situation before the development, and ensuring the
protection of the residents' right to live in a pleasant environment. Therefore
the environmental interest of the above residents in regard to the alteration
approval of the facilities' basic design in the EIA region, are viewed has
being direct and concrete interest protecting each residents individually.
If
the environmental interests of the residents in the EIA subject area expected
to suffer direct and serious environmental injuries, because of the present
case's Yongwha Facility-concentrated District
Development Project, are or are in danger of being aggrieved by the present
case's modification disposition, the residents shall be deemed to have standing
to seek the revocation of the present case's modification disposition and the
present case's adjudication that had dismissed the petition of the
administrative appeal seeking to revoke that modification disposition(see
Supreme Court Decision 97NU3286 delivered on April 24, 1998).
According
to the reasoning of the court below's decision, the
court put together the evidences accepted in the court decision, and found the
fact that the Yongwha facility-concentrated district
is located near Sinwolcheon, that Sinwolcheon
meets the Pakdaecheon and Pakdaecheon
in turn meets Dalcheon stream joining the Namhangang river as it flows downstream, and that the
portion of the stream including the region 72 km downward(until Chungju regulation storage) from the facility-concentrated
district had been designated as level one Environment Protection Zone for Water
Supply.
Afterwards,
putting these circumstances and evidences together, the court below judged that
the Sangshinli, Sadamli, Pyoungdanli and Sinwolli in Chongchun-myoun, Goesan-gun
County, North Choongcheong-Do Province, situated
before the region where Shinwolcheon meets Dalcheon, is included in the area subjected to an EIA which
is expected to receive direct and serious environmental damages by the
Facility-Concentrated District Development Project, and the plaintiffs' present
environmental interests possessed as the residents of that area seem to be
infringed or be likely to be infringed : therefore, plaintiffs have justified
standing to seek the revocation of the present case's modification disposition
and the above mentioned adjudication.
Observing
the record and the legal reasoning above, the court below's
judgement was just and thereby reasonable. Therefore
there is no illegality such as miscomprehension on the legal theory about the
standing at an appellant suit, etc., as had been claimed in the reason for
appeal. The allegation as to this issue in the reason for appeal is without
merit.
3.
The execution of the natural park project is an action that affects the
preservation of the national soil and the protection of the environment, and
therefore the approval for the park facilities' basic plan and the modification
plan are judged to be a form of discretionary action which must be decided
after considering the status, location and surrounding circumstances of the
project site, the appropriateness of the time and executor of the project, the
content, the scale and the method of that project as shown in the project plan,
and its effect on nature and the environment, collectively. Although the
judicial review of the discretionary actions as stated above, is to only
examine whether there was illegality of deviating or abusing the discretionary
power due to the action being based on misunderstanding of facts, violation of
the principle of proportion and equality, violation of the purpose of the
action, or unjust motives; however, if as a result of the judicial review the
discretionary action of an administrative agency is found to have been based on
misunderstanding of facts, etc., the action cannot avoid revocation because of
it being illegal due to deviation or abuse of discretionary power.
According
to the reasoning of the court below's holding, the court
below put together the evidences accepted in its decision and found that after
the present case's original disposition, during the process of the Minister of
Home Affairs' EIA consultation with the plaintiff, the defendant reported the
following opinions : the fact that when the plaintiff discharges contaminated
waste water, the river's water quality is expected to deteriorate, and the
contaminated waste water discharge containing a high quantity of fluorine is
likely to cause problems for the residents who use the underground water
downstream as drinking water, and to bring about the danger of damaging the
agricultural water for farm land and deterioration of the region's tourist
values; the fact that in spite of having reviewed the intervenor's
plan for reduction of the environmental effect, stating that he will reduce the
amount of discharge water and strengthen the purified water quality, no
reasonable measures had been presented to collect the opinions of the residents
downstream who would be concerned about the downstream water's pollution ; the
fact that even though the Reverse Osmotic Method that will process the
contaminated waste water to a BOD level below 1ppm, is technically possible,
when applied to the contaminated waste water treatment facilities at the
facility-concentrated district, the processing method has a low possibility of
stable treatment and is difficult to maintain.
The
court below also found that subsequently the Minister of Home Affairs admitted
the intervenor's application for approval to modify
the basic plan, which stated the reduction of facilities and discharge water
and the intensification of the discharge water's quality in comparison to what
was stated in the present case's original disposition, as reflecting the contents
of the discussions taken with the plaintiff, thus rendering the present case's
modification disposition.
The
court below holds that, in the light of the admitted facts above, despite the
fact that the plaintiff had presented negative opinions during the process of
the EIA conference, the modification disposition mentioned above rendered by
the Minister of Home Affairs, without sufficient consideration of the possible
environmental risks, must be seen as not having properly reflected the contents
of the EIA conference and thereby would be violating the NPA and the EIAA. As a
result, the court below holds that there is a risk to cause a more serious
environmental damage exceeding the limit of tolerance compared to the situation
before the present case's development of the facility district and that
therefore the present case's alteration disposition must be viewed as illegal.
However,
as long as the Minister of Home affairs had consulted with the defendant in
making the present case's modification disposition, unless special
circumstances such as the contents of EIS Statement extremely deficient that it
cannot achieve the legislative intention of the EIA system's existence, just by
the fact that the Minister of Home Affair's disposition contradicting the defendant's
EIA opinions, this fact will not make the disposition illegal; therefore, the
part of the court below's reasoning stating that the
Minister of Home Affairs' modification disposition in the present case, in
spite of the negative opinions on the project in this case reported by
defendant, violates the NPA and EIAA because it does not properly reflect the
contents of EIA consultation, must be perceived as inappropriate.
Nevertheless,
the court below's reasoning in the above also appears
to include the following judgments: it is practically impossible to treat
contaminated waste water from this case's facility-concentrated district to a 1
ppm BOD level mentioned in the modification
disposition, despite establishing water treatment facilities that utilize the
Reverse Osmotic Method; there is a high possibility of environmental pollution
such as the deterioration of the water quality at Sinwolcheon,
etc., when the contaminated waste water gets discharged into Sinwolcheon; this will infringe the Shinwolcheon
residents' living interests exceeding the society's common idea of the limit of
tolerance in comparison to the conditions before the development of the
facility district, due to the contamination of the source of drinking water for
the plaintiffs residing in the neighborhood of Sinwolcheon,
or contamination of their agricultural water; despite these facts, the Minister
of home affairs' modification disposition did not sufficiently consider these
environmental risks, and is therefore an illegal action of deviating or abusing
his/her discretionary authority; observing the record, the court below's findings and holdings are just and reasonable in
reaching its conclusion and there is no illegality corresponding to the
misconstruing of the NPA and the EIAA's legal
interpretation, insufficient review or lack of reason, contradicting reason,
etc., as claimed in the reason for appeal. All allegations in the reasons for
appeal regarding these issues also are without merit.
4. In
accordance with Article 19 of the
ALA in regard to the adjudication of an administrative appeal, when
the adjudication itself has a proper illegality, meaning that illegality exists
in regard to the subject, procedure, form or content of the adjudication
itself, one may seek to revoke it by instituting an appeal litigation. However,
an adjudication to dismiss the petition for administrative appeal when it is
not illegal, will deprive a petitioner of the right to receive a review on his
or her merits, falling under the case where there is a proper defect that had
not existed in the original disposition: therefore, the adjudication involved
in this case is subjected to a revocation litigation.
In
line with the reasoning above, the court below's
following holdings are regarded as being just and standing to reason, meaning
that and no illegality such as misconstruing the legal theories on proviso of Article 19 of the ALA, etc.,
had been committed as claimed in the reason for appeal: taking into account the
sequence of events, the reason, and the contents of the present case's original
disposition and the modification disposition, even if this case's modification
disposition gets revoked, it does not mean that the effect of the present
case's original disposition will be revived; even though the Minister of Home
Affairs had already granted an adjudication to revoke the president of
Corporation's permit to execute the park project, the plaintiffs possess legal
interests in seeking a review to revoke the present case's modification
disposition; therefore, the Minister of Home Affairs' modification to dismiss
the plaintiffs' petition for administrative appeal because of it being illegal,
tallies with the meaning of the 'adjudication itself possessing proper
illegality.' Claims made in the reason for appeal on this
matter is also groundless.
5.
Therefore, we dismiss all appeals. In regard to the costs of the appeal, the
expenses regarding the supplementary interveners shall be the burdened by the
defendant's supplementary interveners and the rest of the expenses shall be the
burdened by the defendant. As it is evident that the 'Landlord Union of Yongwha Facility-Concentrated District in Songnisan National Park' mentioned in page 1 of the court below's decision, is a mistake of the 'Landlords' Union of
Facility-Concentrated District at Yongwha Spa in Songnisan National Park,' with the consensus of all
justices involved here, we decide to correct it ex officio pursuant to Article
197 (1) of the Civil Procedure Act.
Justices Lee Yong-woo (Presiding Justice)
Cho
Moo-jeh
Kang
Shin-wook
Lee
Kang-kook (Justice in charge)