하자있는 환경영향평가를 거친 행정처분의 판결이유에 관한 재검토 소고 ― 반복된 판박이 대법원 판시이유에 대한 비판 ―

As the decision on the administrative case is directed to the administration by the law, it is not exaggerating to stress the importance of legal logical decision and its rhetoric(sentence) in the process of conclusion of judgment while conclusion itself is important. In this regard, there are many problems in the judgment of the Supreme Court on the illegality of environmental administrative action such as the approval, license and permission of the Supreme Court under the defective environmental impact assessment. The Supreme Court concluded, “If the action is done without proper environmental impact assessment, the action is illegal. However, if such procedures are followed　but the content of the environmental impact assessment is defective, when it is not the same case as the action without environmental impact assessment because the assessment is poor to the extent to which the degree of impairment cannot achieve the purpose of legislation of the environmental impact assessment system, the level of deficiency is only a factor in judging whether there is an illegal act of deviating or abusing the discretion to the action of the approval. The deficiency itself is not a cause of illegality for such approval action” which has been repeated like a copy. In particular, when it comes to the phrase ‘if it is not the same case as the action without environmental impact assessment’, it means that the Supreme court gives an indulgence to the administrative agency based on a perception of environmental impact assessment as a rite of passage. It seems that they have followed the US Supreme Court's tendency to respect the administration's judgment. Although it is understood that it is a result of taking into account the opportunity cost or burden cost that has been put in place after the selection of the location, or to prevent the no action of the business, the rhetoric went too far. The current legislation has introduced a strategic environmental impact assessment, which has reduced the scope for such excuses. As the environmental impact assessment is not an administrative action, the judicial review should be carried out at the stage of illegality examination of the administrative action such as licensing and approval of the project. Thus, it is problematic if the judicial review of the environmental impact assessment is carried out after the administrative action. In order to overcome the timely and structural limitations of such judicial review, if the strategic environmental impact assessment is performed properly in the process of project plan as a stage prior to the administrative action, it will be possible to adopt a non-implementation alternative to the project. Thus, it will prevent waste of socio-economic costs such as suck of investing expenses before the environmental impact assessment. Of course, the strategic environmental impact assessment by the administrative agency in the environmental administration practice is likely to be practically more serious than the environmental impact assessment in terms of scope and strength of the review. But, it is still doubtful if it is carried out deeply enough to preoccupy qualitative superiority. Therefore, there is a desperate hope that copy statements that seem to abandon the judicial judgment for almost 20 years should be corrected.