1. Overview of the case

1) Who is the party represented by Barun Law? : The Republic of Korea (the Ministry of Defense)

2) Background of the case

A soil environmental assessment was commissioned by the plaintiff for the sale of land near the Surreypul Tunnel (the “Land”), which was used as the site of the Armed Forces Intelligence Command until around 2015. The basic investigation revealed contaminants including fluoride in the Land. The plaintiff received a corrective order from the defendant (the mayor of Seocho-gu Office), the management agency of the Land, to conduct a detailed soil survey. As a result of the two soil tests conducted, it was determined that fluoride, among the contaminants detected on the Land, was created by natural causes.

Nevertheless, the defendant issued an order to take action to recover contaminated soil for all contaminants, including fluoride, pursuant to Article 15 (3) of the Soil Environmental Conservation Act. The plaintiff implemented the recovery order for the remaining contaminants except fluoride. In the meantime, the period for filing a lawsuit to revoke the recovery order issued by the defendant had passed (hereinafter, only the part of the recovery order concerning fluoride is referred to as the “Disposition”).

The issue in this case is whether the defect in the Disposition is so objectively material and manifest as to render the Disposition invalid.

(1) We analyzed the soil survey report in detail and proved that the fluoride concentration in the Land was similar to the fluoride concentration in the surrounding area and that the fluoride originated from the bedrock of the Land. It was emphasized that the fluoride in the Land was soil contamination caused by natural causes and therefore could not be subject to a recovery order under Article 15(3) of the Soil Environmental Conservation Act.

(2) Based on the Constitutional Court's decision on the unconstitutionality of Article 10(3)(2) of the Soil Environmental Conservation Act and the plaintiff's past acquisition and use of the Land, we argued that the plaintiff was not the person responsible for the recovery of the Land under the Soil Environmental Conservation Act.

(3) Based on the intention of legislators stipulating Article 6(3) of the Soil Environmental Conservation Act and a reasonable interpretation of the statutory text, the plaintiff argued that the Land, which is state-owned property, cannot be subject to an order to take recovery measures under Article 15(3) of the Soil Environmental Conservation Act.

(4) In addition to these circumstances, we specifically pointed out the background of the Disposition and the excessive strictness of the management standards for fluoride pollution under the Soil Environmental Conservation Act. We vigorously argued that there were multiple defects in the Disposition, which were so objectively grave and obvious that it should be canceled.

The Seoul Administrative Court accepted many of the plaintiff's arguments, holding that the fluoride in the Land was caused by natural causes, and that the plaintiff was not responsible for the cleanup of the Land. The court also held that the defendant's decision to deem the fluoride on the Land to be soil contamination was invalid because the defendant could have been fully aware of the situation, and the defect was objectively material and obvious (first instance decision affirmed).

This case is significant in that the plaintiff was able to identify, argue and prove various defects in the Disposition and finally invalidated the Disposition in a difficult case, in which it was necessary to prove not only that there was a defect in the Disposition, but also that the defect was so material and manifest that the Disposition should be invalidated. In addition, the plaintiff was able to avoid spending tens of billions of won in remediation costs for fluoride purification in the Land and to normally proceed with the sale purchase contract for the Land, which was in danger of being canceled due to the Disposition.

 

​□ Attorneys in charge: Jeon Gi-cheol, Ryu Jong-myoung, Shim Min-seon