Action for Cancellation Claim

Law Firm Barun (LLC)

Attorney Park Ge-type

Barun Law Firm Malocle

Attorney Kim Jung-soo, Lee Dong-soo, Park Jae-young, Park Jae-young, the largest service, Kim training;

Long-term Resources, Han-Sapin

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo-young, Justice Seo-young, Justice Seo-young, Justice Seo-young, Justice Seo-young, Justice Shin Byung-young, Justice Kim Min-young,

Kim Sung-soo, vice-zed, profit-making, Kim Chang-kick, Cho Jong-ho

Law Firm LLC et al., Counsel for the defendant-appellant

Attorneys Gangnam-gu, Kim Jin-jin, Park Jin-jin, Lee Jin-jin, Cho Jong-won, and Kim Jong-young.

Kim Yong-chan

Litigation costs shall be borne by the Plaintiff, including the part resulting from the participation.

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the overall purport of the pleadings in each entry in Gap evidence 2 to 7.

A. Saemangeum Development Project is a national project that creates a total of 33.9 meters of tide embankments (including drainage section and connecting road) around the world at a maximum of 33.9 meters connecting Gun and Gunsan in the Do of Jeollabuk-do, Jeollabuk-do, Kim Jong-si, and Gunsan, and reclaims the inside of the project and creates two drainage lock gatess, 28,290 major land, and 11,810 major outflows. B. Each tide embankment, which is an external facility of the reclaimed land of public waters, is composed of 4.7 km sections, which connect 4.7 km in the case of tide embankments, 9.9 km sections, 3.4 km sections, which connect Gado and Do of Gun, 2.7 km sections, 4 Do and 4 Do of Gun, 10 Do and 110.3 Do of Do of 1922.3 Do of Do of 10.4 Do of Do of 20.

D. On October 26, 2015, the Central Dispute Mediation Committee (hereinafter referred to as the “Committee”) established under the jurisdiction of the local government under the jurisdiction of the defendant to which the local government belongs, based on the following circumstances: (a) among the reclaimed land of the Saemangeum Embankment No. 1, the local government where the part of the reclaimed land of the Saemangeum Embankment No. 1 (hereinafter referred to as “the Committee”) excluding the hydrodog-ri 495, 496, which is the part of the purport of the claim, belongs to the local government, excluding the hydrodog-ri 495, 496, which is the part of the reclaimed land of the Saemangeum Embankment No. 2 (hereinafter referred to as “the Committee”); and (b) the local government where the part of the reclaimed land of the Saemangeum Embankment No. 2, which is the part of the purport of the claim, belongs to the Governor of Jeollabuk-do; and

① According to the office building dust on the development of land on the inside of the Saemangeum Sea Embankment, the determination of the embankment No. 1 and the embankment No. 2 under the jurisdiction of the Seoan-gun is likely to be more closely adjacent to the road network connected to the inland land important for the efficient utilization of the national land.

② The tide embankments Nos. 1 and 2 are linked to the west-gun and Kim Jong-si. Residents who will reside in each reclaimed land are in line with the administration efficiency to receive various infrastructure, such as administrative services, roads, electricity, water, communications, etc. from each adjacent local government. ③ Mangyeong River and Mangjin River have achieved natural boundaries in the Gun, Gun, Kim Jong-gu, and the jurisdiction of the tide embankments Nos. 1 and 2 is based on Mangyeong River and Mangjin River, the entire Saemangeum area can be clearly divided into the zone based on natural geographical features. The two west-gun main roads and Mangyeong River and Mangjin River constructed along the Dog-do river and used as roads may also be formed as artificial structures that distinguish the jurisdiction of reclaimed land.

E. On November 13, 2015, according to the resolution of the commission, the Defendant rendered a decision to determine the local government to which a tide embankment No. 1 belongs as his father-gun and the local government to which a tide embankment No. 2 belongs as Kim Jong-si (hereinafter “instant decision”) and notified the Plaintiff, Kim Jong-si, and the military market, etc. of the decision. (f) On November 27, 2015, the Plaintiff filed the instant lawsuit seeking revocation of the tide embankment No. 2 among the instant decision with the Supreme Court.

2. Summary of the plaintiff's assertion

The Defendant’s exercise of discretionary power over the determination on the reversion of reclaimed land must appropriately balance the interests of the relevant local governments and their residents. However, in the following respect, the determination of this case is erroneous in the misapprehension of discretionary power due to the lack or omission of consideration of important factors or lack of legitimacy and objectivity in balancing the interests of the factors to be considered. No. 2 shall belong to the jurisdictional area of the Gun.

(1) Since the whole construction of the Saemangeum Sea Embankment may take a long time, it shall be determined in consideration of the current status of the construction of the tide embankment completed.

(2) International cooperation sites connected to embankments 2 are effective to be used and managed in connection with tourism and leisure sites located on the side of the west-gun, the reclaimed land for agricultural life, which is the reclaimed land for Kim Jong-si.

(3) At present, embankments No. 2 are cut off into Kim Jong-si and the sea, and the Mangyeong River and Dojin River end up the river section before the area of the tide embankment is located, making it difficult to promptly provide administrative services because the area of the tide embankment No. 2 belongs to Kim Jong-si, the area of the tide embankment No. 50cm or the area of the international cooperation is not 50cm or east-gun and fishermen suffered the largest damage due to the Saemangeum Development Project.

Judgment

A. Relevant provisions and legal principles

In light of the legislative intent of amending Article 4 of the Local Autonomy Act by Act No. 9577 of Apr. 1, 2009, and establishing a new system for the determination of a local government to which a reclaimed land belongs by the Minister of the Interior and Safety, the customary law effect of "marine boundary standard on the jurisdiction of reclaimed land" has been limited to the amendment of the above Local Autonomy Act, and the Minister of the Interior and Safety and the competent committee should have a wide range of discretion when determining the local government to which the reclaimed land belongs: Provided, That the discretion of formation is not unlimited, but there is a limit that should be compared and balanced by comprehensively taking into account all relevant interests, rather than unlimited, when the Minister of the Interior and Safety and the competent committee did not carry out such a balancing, or when the pertinent committee did not carry out any matter to be included in the subject of consideration of the profit balancing, or when the profit balancing lacks legitimacy and objectivity, the competent decision should be deemed unlawful.

Considering the above purport of amendment of the Local Autonomy Act, when the Minister of Public Administration and Security and the competent commission determine a local government to which reclaimed land belongs, it should generally consider the following matters (see Supreme Court Decision 2010Du73, Nov. 14, 2013).

(1) The competent authority shall determine the relevant area and make efficient use of new land available in consideration of the detailed land use plan of each area within reclaimed land and organic use relationship with neighboring areas, etc.

(2) A reasonable boundary shall be established based on the situation in which reclaimed land is used, in consideration of the shape of connection between reclaimed land and another local government's jurisdiction, connection and distance between reclaimed land and another local government's jurisdiction, and the location of natural features, such as roads, rivers, canals, etc., which can be easily recognized as boundary within the jurisdiction of reclaimed land.

(3) In consideration of the relationship between reclaimed land and neighboring local governments and various factors, such as the installation and management of infrastructure, such as roads, ports, electricity, waterworks, communications, etc., the prompt provision of administrative services, and the ability to cope with emergencies, etc., the efficiency of administration shall not be significantly impaired.) The residents living in reclaimed land shall take into account whether to include the land in the district under the jurisdiction of a local government in the residential and living environment from the residents living in reclaimed land would convenience their residential and living conditions, taking into account the following factors: (a) since the implementation of reclamation works causes the loss of adjacent public waters, local governments and residents lose adjacent public waters; (b) thereby, the historical and practical benefits of local governments resulting from such loss shall be taken into account

(6) In particular, in cases of a reclamation project, the whole reclamation project plan of which has been formulated with a single plan and which is carried out in a phased and successive manner by project details or district, even if the determination of attribution of jurisdiction over a part of the area, the whole reclamation area of which has been completed, cannot be made first due to the need for administrative support for the part of which reclamation has been completed, etc., the determination of attribution of jurisdiction over such part may have

In the event that a determination of attribution is made only for some areas, the determination of attribution should be made by taking into account the framework of the Gu’s overall jurisdiction over the area prearranged for reclamation, taking into account the overall implementation plan of the relevant reclamation project, the land use plan and use plan of the reclaimed area, the development and use plan of the harbor. If an inappropriate determination of attribution is made in part in light of the overall jurisdictional Gu, there is a risk that the overall implementation plan of the relevant reclamation project and the detailed land use plan of the reclaimed area may not be reflected, and there is a dispute between local governments at each time the determination of attribution is made, and social and economic expenses may increase, and it is not desirable to interfere with social integration. Moreover, if a determination of attribution is made once it is made on a certain area of reclamation, as the acquisition right of the local government having jurisdiction over the specific area of reclamation, it may not be ruled out that the overall balance of interests or unnecessary consumption disputes may be raised. In light of such circumstances, the determination of attribution of the entire area subject to reclamation should also be made even if it is not against the jurisdiction of the entire area.

B. Determination on the instant case

Examining the following circumstances in light of the legal principles as seen earlier: (a) evidence Nos. 1 through 8; (b) evidence Nos. 1; (c) evidence Nos. 2 and 3; (b) evidence Nos. 4-1, 2; (c) evidence Nos. 5, 6; and (d) evidence Nos. 12-1, 2; (b) Eul; or (c) evidence Nos. 13, 14; and (b) evidence Nos. 18; and (c) the overall purport of the pleadings; and (d) evidence Nos. 18; (b) the Defendant did not compare and balance all relevant interests; or omitted matters to be included in the subject of consideration of the balancing of interests; or (c) it is difficult to deem that the part of the instant ruling, which was a deviation from or abused by discretionary power, constitutes an unlawful disposition that lacks legitimacy and objectivity.

① Of the Saemangeum Sea Embankments, the Defendant rendered a decision on November 17, 2010 on the reversion of the reclaimed land of the embankment 3 and 4 to the Gun, and the Plaintiff and the Kim Jong-si filed a lawsuit seeking revocation of the said decision. In the Supreme Court Decision 2010No73 Decided November 14, 2013, the Supreme Court ruled that the entire reclamation area of the Saemangeum Sea as a whole can be classified into A (Simsan-si adjacent part), B (Simsan-si adjacent part adjacent thereto), and C (Siman-Gun adjacent part adjacent thereto), and the respective parts are adjacent to the Simsan-si, Kim Jong-si, and Seoan-si, and that the overall land use plan or the overall land use plan of the above case should be recognized as reasonable, unless there are other special circumstances, such as changes in the future situation and changes in the structure, accessibility, anticipated residential life rights, efficiency of administrative services, etc. of the existing land.

In light of the overall jurisdiction of the area prearranged for reclamation, it cannot be deemed that there is a need for local governments, such as tourism and leisure sites, to have jurisdiction over the land for international cooperation. Rather, considering the road connection network with inland land, it seems efficient to combine the land to the Kim Jong-si, which is located on the land rather than the west-gun, cut off to inland waters.

③ On the basis of the completion of reclamation, Mangyeong River and Mangjin River are largely divided into A, B, and C as shown in Attached Form 2. The Ministry of Land, Infrastructure and Transport stated that it was a plan to review the change of the closing point of the river area into a point adjacent to the sea according to the entire development plan, and the Saemangeum Development Agency also has the same plan.

④ Considering the part of reclaimed land on the side of the tide embankment, it is difficult to readily conclude that the tide embankment No. 1 is a shape in which the part to which the tide embankment belongs is the same as that in the Eastwest, and that the tide embankment No. 2 belongs to the father-gun, and that it guarantees the accessibility to the tide embankment and the efficiency of administration.

⑤ Since the Saemangeum tideland was a large scale of 8% of the area of the nationwide tidelands, and the fishermen in Gunsan-si, Kim Jong-si, and Banan-gun were jointly utilized, it is difficult to deem that the damage of the public waters caused by reclamation was limited to the west-gun. Rather, in the case of Kim Jeju-si, it is difficult to deem that the damage caused by the damage to fishermen’s use of the tidelands and the release of the sea by the Saemangeum tideland was fully prevented, and the damage was high.

The plaintiff's assertion is without merit.

4. Conclusion

The plaintiff's claim is dismissed without merit, and the costs of lawsuit shall be borne by the plaintiff, including the part resulting from the participation in the assistance. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo

A person shall be appointed.