Who may sue to invalidate a public waters reclamation licence and a project approval? Supreme Court Decision 2006Du330 on 'an interest protected by law'

Question

Article 35 of the Administrative Litigation Act provides that an action to confirm the nullity of a disposition may be brought by a person who has a legally protected interest in confirming the existence or absence of the disposition's effect. When the plaintiff is not the addressee of the disposition, the question is what interest counts as protected by law, and how a resident affected by a large public development shows it.

Decision 2006Du330, a full-bench judgment, answers that question for 3,539 residents who sued the Minister of Agriculture and Forestry to confirm the nullity of the public waters reclamation licence and the agricultural land improvement project approval for the Saemangeum reclamation development project, and to set aside the Minister's refusal to revoke those dispositions. The project rested on a public waters reclamation licence granted on 17 October 1991 and a project approval granted in November of the same year under the Rural Modernization Promotion Act and the former Public Waters Reclamation Act, and was to build dykes in the estuaries of the Mangyeong and Dongjin rivers in Jeollabuk-do and to create 28,300 ha of farmland and 11,800 ha of a freshwater lake.

Material to check

The statutes are Articles 1, 19, 26, 27 and 35 of the Administrative Litigation Act, in their current text as published. The decision also cites former versions of the Public Waters Reclamation Act and its Enforcement Decree, the Rural Modernization Promotion Act and its Enforcement Decree, the Environmental Conservation Act and its Enforcement Decree, and the Framework Act on Environmental Policy and its Enforcement Decree; as the decision cites them, their content is left unstated here. The decision reads those provisions together with Article 35 to define standing, and with the Public Waters Reclamation Act provisions to define the Minister's power to revoke a licence before completion of the reclamation works where unforeseen change of circumstances makes it especially necessary in the public interest.

The decisions are Decision 2006Du330 (16 March 2006), a full-bench judgment, and the precedents it cites: Decision 94Nu14230 (30 June 1995) and Decision 97Nu13337 (8 February 2000) on the meaning of a legally protected interest for a third party; Decision 97Nu19571 (22 September 1998) on the environmental interest of residents inside and outside the environmental impact assessment area; Decision 94Nu4615 (11 July 1995, full bench) and Decision 2004Du10968 (24 June 2005) on nullity; and Decision 99Du9902 (29 June 2001) on the effect of a defective environmental impact assessment. Decisions 2003Du2175 and 97Nu5503 are cited in the judgment; their text could not be opened, and nothing is said here of their content.

Possible readings

Read with Decisions 94Nu14230, 97Nu13337 and 97Nu19571, Article 35 protects only an individual, direct and concrete interest arising under the disposition's governing or related statutes; an indirect, factual or economic interest, or the general, indirect and abstract interest the public shares as a result of protecting the public interest, is not enough. On the decision's reading, residents inside the environmental impact assessment area who are expected to suffer direct and serious environmental harm are protected, as individuals, in living without environmental intrusion beyond the tolerable limit and in a pleasant environment; absent special circumstances, infringement or the risk of infringement of that interest is presumed, so those residents may sue to confirm the licence and the approval void. Residents outside that area must prove that, compared with the position before the disposition, they suffer or risk environmental harm beyond the tolerable limit.

A second reading concerns the defect that makes a disposition void. Following Decision 94Nu4615 and others, the decision states that illegality alone is not enough: the defect must be grave, violating an important part of the statute, and objectively manifest. Where the environmental impact assessment procedure was carried out but the assessment is thin, the decision holds, following Decision 99Du9902, that unless the deficiency defeats the legislative purpose of the assessment regime so that it differs from having no assessment at all, it is only one element in judging whether the approval involves an excess or abuse of discretion, and does not of itself make the approval unlawful.

A third reading concerns the power to revoke and the project's purpose. On the decision's reading of the former Public Waters Reclamation Act provisions, 'change of circumstances' means a change in each of the circumstances considered, or which should have been considered, when the licence was granted, such that maintaining the disposition would be markedly contrary to the public interest; the party asserting the change bears the burden of proving it. The decision further states that where a freshwater lake created by reclamation is expected to fail the water quality standard for agricultural water, so that the project purpose cannot be achieved, the dispositions are void; that is judged by whether water quality measures were feasible at the time they were devised and whether their cost is beyond what society can bear.

What the decisions held

The Supreme Court dismissed the appeal in full and ordered the plaintiffs to bear all the costs, including those arising from the participation of Jeollabuk-do, affirming the judgment of the Seoul High Court of 21 December 2005 (2005Nu4412). On standing it held that Plaintiffs 144 to 3,539, who lived in Mokpo, Iksan, Wanju, Jeonju, Seoul and other places outside the environmental impact assessment area, which was Gunsan City, Gimje City and Buan County, had not proved environmental harm beyond the tolerable limit and had no standing, and that the right to a healthy environment in Article 35(1) of the Constitution and Article 6 of the former Framework Act on Environmental Policy did not give them a concrete right to sue. Plaintiffs 1 to 143 were residents inside that area.

On the merits the decision accepted the court below's findings that the defects alleged were not grave and objectively manifest. The 1988 economic analysis had shortcomings, yet the corrected benefit-cost ratio at a 10 per cent discount rate was 0.99 (internal rate of return 9.92 per cent), and a joint private-government panel of 30 public investment analysis experts, working for about one year and two months, agreed on 10 scenarios and found each economically viable; the court below could hold that no defect reached the standard for nullity. The environmental impact assessment was thin but was later supplemented, and the government measures plan added facilities and staged development, with 11 tasks on track in 2004 and water quality results better than predicted; of the lake's water quality improvement spending of KRW 2,257 hundred million, KRW 1,461 hundred million was already within the project budget, leaving KRW 796 hundred million of new money. As to revocation, the decision found no unforeseen change of circumstances in the project purpose, the need for farmland, economic viability, water quality or the marine environment, and affirmed the refusal of 24 May 2001.

The decision recorded separate opinions on the change-of-circumstances point. Justices Kim Young-ran and Park Si-hwan dissented, arguing that the natural environment cannot be valued only by what money can measure, that in the intermediate zone of proof a large development whose possible harm is severe should be reconsidered rather than dismissed for failure of proof, and that on the facts unforeseen changes had arisen so that the refusal to revoke was an excess or abuse of discretion. Four Justices joined a supplementary opinion agreeing with the majority but stressing that halting a project requires proof of harm outweighing the national and social benefits lost and the massive costs already spent, that the environmental impact assessment had been deficient, and that the Minister must keep reviewing the project as conditions change.

Points left open

The decision does not say what proof of harm beyond the tolerable limit a resident outside the environmental impact assessment area must give, or how such proof sits with the presumption it grants to residents inside that area. It states the test but applies it only to the plaintiffs before it, who had proved nothing.

The decision leaves open how to weigh environmental values that money cannot capture in an economic viability analysis. It approves expert scenario analysis where no settled principles exist for what enters a benefit or cost item, while the dissent would require the project's national economic gains to be substantially superior to the sum of the project's costs and the economic valuation of the destroyed natural environment value, among other such losses; the tension is left unresolved. The supplementary opinion also leaves open whether a later change in water quality or marine conditions could still support revocation.

When to reconsider

We revisit this brief if the Supreme Court revisits the standing of residents outside the environmental impact assessment area, if it rules on the valuation of non-monetisable environmental values in a public investment analysis, if a later decision finds a change of circumstances in the Saemangeum project, or if the Administrative Litigation Act or the cited statutes are amended.

Statutes referred to

• 행정소송법 제35조, 제1조, 제19조, 제27조, 제26조
• 구 환경보전법 제5조
• 구 환경보전법 시행령 제4조
• 구 환경정책기본법 제6조, 제26조
• 헌법 제35조
• 구 농촌근대화촉진법 제92조, 제93조, 제96조
• 구 농촌근대화촉진법 시행령 제43조, 제44조
• 구 공유수면매립법 제3조의2, 제4조, 제9조의2, 제32조, 제40조
• 구 공유수면매립법 시행령 제9조, 제40조
• 환경·교통·재해 등에 관한 영향평가법 제4조

Decisions referred to

• 대법원 2006. 3. 16. 선고 2006두330 전원합의체 판결 · Decision ledger
• 대법원 1995. 6. 30. 선고 94누14230 판결
• 대법원 2000. 2. 8. 선고 97누13337 판결
• 대법원 1998. 9. 22. 선고 97누19571 판결

Verification status

The current texts of the cited articles of the Administrative Litigation Act were read at the National Law Information Center on 24 October 2026, together with the decision in its published holdings, summaries and full reasons, and the cited decisions whose holdings and summaries are published. The former versions of the other statutes are named as the decision cites them and their content is left unstated, as is the content of the two cited decisions whose text could not be opened.