[2] Whether only the excavated hole's ownership can be transferred separately from the land ownership (negative), and whether the person who acquired only the right to use groundwater from the previous land owner can oppose the new landowner by such agreement (negative)

[3] Whether an administrative agency with the right to permit the use of groundwater has the right to review the subject of private jurisdiction over the right to use groundwater (negative)

[2] The permission for the use of groundwater is not a land owner but can be obtained by a person who can use and benefit from the land (Article 6 (1) 1 of the Enforcement Rule of the Groundwater Act), and it is also possible to enter into a contract for the use of groundwater with only the right to use groundwater as the transaction object separately from the land ownership. Thus, even if the permission for the use of groundwater was granted, there may be cases where the land owner has no right to use groundwater according to the contract between the parties. However, since the excavated hole is consistent with the land, the agreement for the use of groundwater, separate from the land ownership, shall be null and void against the principle of real right, and the agreement for the use of the right to use groundwater, separate from the land ownership, shall be limited to the agreement for the possession of the excavated hole to the person other than the land owner, and the ownership of the land shall be limited to the possession of the right to use groundwater,

[3] In relation to the permission for the use of groundwater, the administrative agency has the authority to examine whether the use of groundwater in question is likely to obstruct the public interest, and it does not have the authority to examine whether the right to use groundwater belongs to anyone under the private law.

2. The costs of lawsuit shall be borne by the defendant.

The following facts do not conflict between the parties, or there is no counter-proof evidence as to Gap evidence 1, Gap evidence 5, 6, Gap evidence 8-1, Eul evidence 2-4, Eul evidence 6, and Eul evidence 6.

A. On December 22, 1994, the non-party Jeju Hot Spring Development Project Co., Ltd. acquired the land of 1461-1 to 4 percent (hereinafter “the land of this case”) in Songju-gun, Jeju-gun, Jeju-do, Jeju-do, Jeju-do, and obtained permission from the Governor of Jeju-do on January 22, 1996 for the utilization of groundwater as stated in the attached Form pursuant to Article 25(1) of the Special Act on Jeju-do Development.

B. On March 13, 1997, the non-party regular accommodation was awarded the instant land, and the Plaintiff purchased the instant land from the above regular accommodation on January 24, 1998 and completed the registration of ownership transfer, and thereafter owned the instant land until now.

C. Meanwhile, on February 8, 1996, the nominal owner of the above ground water use permission was changed from the Jeju Hot Spring Village Co., Ltd. to the Kim Mine Day and Kim Dong-dong on March 7, 199, from the above Kim Mine Day to the above Kim Jong-dong on December 4, 199, and from the above Kim Jong-si and Kim Dong on December 4 of the same year, respectively, to the non-party Jong-dong. [However, the Special Act on Jeju-do Development, the Enforcement Decree of the same Act, the Enforcement Decree of the same Act, and the Enforcement Ordinance of the same Act (hereinafter referred to as the "Enforcement Ordinance") did not take procedures for changing the name of the excavated owner, and only the procedure for reporting the change of the name of the excavated owner is required

D. After acquiring the ownership of the instant land and around May 198, the Plaintiff reported to the Defendant that the instant excavated owner should change the name of the permit for the use of groundwater in the future of the Plaintiff (hereinafter “the instant report”), but the Defendant rejected the said report on the 21st of the same month on the ground that the Plaintiff did not submit the original copy of the permit for the use of groundwater that was required to be attached to the said report.

2. The parties' assertion

The plaintiff is the cause of the claim of this case, although it was true that the plaintiff did not submit the original copy of the permission for the use of groundwater of this case, it is consistent with the land of this case, so the procedure for the change of the owner's name of the excavated hole is not only the plaintiff's ownership but also the procedure for the change of the owner's name of the permission for the use of groundwater of this case. Since the permission for the use of groundwater of this case is an substantial administrative act, it is reasonable that the plaintiff who acquired the land of this case becomes the owner of the permission for the use of groundwater of this case is not a legitimate ground to return the plaintiff's report of this case. According to the above enforcement ordinance stipulating the procedure for the change of the owner's name of the excavated hole, the defendant argued that the disposition of this case which rejected the report of this case on the ground of the failure to submit the documents is legitimate as a disposition in accordance with the relevant laws and regulations, and is often traded separately from the land ownership. In this case, the plaintiff did not submit the original permission or the right to use groundwater of this case.

3. Relevant statutes and judgments

Article 25(1) of the Act provides that a person who intends to excavate land or to utilize groundwater for the purpose of making groundwater available in Jeju-do shall obtain permission from the Do Governor, and Article 15(4) and (5) of the Enforcement Decree of the Act and Article 58 subparag. 3 and Article 59 subparag. 3 of the Enforcement Decree of the Act provide that where the possessor of the excavated hole was changed after permission for the utilization of groundwater, he/she shall file a report on the change of the excavated hole owner within a given period, and at the time of such report, he/she shall submit documents proving the change of

According to the above provision, the instant disposition by the Defendant seems to be unlawful on the following grounds. However, the instant disposition is unlawful on the following grounds.

A. The Civil Act provides that the ownership of land extends to the upper and lower portion of the land to the extent of a legitimate interest, and considering the benefit that is given by the groundwater, the land owner’s ownership extends to the underground of the land where the groundwater is located. Therefore, since the groundwater use right is part of the land ownership, in principle, the land owner has the right to use the groundwater

B. However, if all land owners can use the groundwater without any restriction on the ground that it is their own land, there may be problems such as subsidence of the ground due to the exhaustion of groundwater and pollution of groundwater. Therefore, the law stipulates that the utilization of groundwater may be subject to permission.

C. Therefore, once an administrative agency granted a permit for the utilization of groundwater to a specific land, it would have confirmed that there is no concern about public interest issues even if the groundwater is used by the administrative agency, which eventually confirmed that the legal limitation on the ownership of the ground above the land has been cancelled. Therefore, since a person who acquired the land for which the permit for the utilization of groundwater was difficult is a person who acquired the land without any legal limit on the ownership of the underground, it is in principle that the groundwater can be freely used.

(d)A permit for the use of groundwater, as well as a permit for the use of groundwater, can be obtained from a person who can use and benefit from the land (Article 6(1)1 of the Enforcement Rule of the Groundwater Act). It is also possible to enter into a contract for the use of groundwater with only the right to use groundwater as the object of trade, separate from the land ownership. Therefore, even if the permit for the use of groundwater is the owner of land, it may also arise if there is no right to use groundwater under a contract between the parties.

E. However, since the excavation hole is consistent with the land, the agreement that only the excavated hole's ownership separate from the land ownership is null and void against the principle of real right and the agreement that vests the right to use groundwater in a person other than the land owner is merely an obligatory effect. Thus, if the ownership of the land is transferred to a third party, the agreement cannot be set up against the new landowner with the agreement.

F. In the instant case, it is difficult to believe that the Plaintiff’s acquisition of the instant land on December 4, 1996, which is the title holder of the current permission for the utilization of groundwater, was the successful bidder of the said land on March 14, 1997, and that the Plaintiff’s acquisition of the instant land from the above right-holder of the instant land on January 24, 1998. As such, the Plaintiff’s acquisition of the instant land from the above right-holder of the land on January 24, 1998 cannot be asserted against the Plaintiff with the said right-holder of the instant land after the Plaintiff acquired the right-holder’s groundwater, and the Plaintiff cannot stand against the Plaintiff with the right-holder of the instant land (No. 9, the evidence No. 9 stated as if the contract on the instant right-holder was concluded, but, i.e., the Plaintiff again acquired the instant land from the successful bidder of the instant land

G. Therefore, the Plaintiff is the owner of the instant land, in principle, who is the right to use the instant groundwater, and the above Y, who is the current owner of the permission for the use of groundwater, cannot oppose the Plaintiff with the right to use the groundwater. Thus, the Defendant should accept the instant report to the effect that the Plaintiff may be recognized as the owner of the permission for the use of groundwater in question (the Defendant has a dispute over the instant groundwater use right, and thus, the instant report cannot be accepted because the Plaintiff did not submit the original copy of the permission for the use of groundwater in this case, and the Defendant has the authority to examine whether the instant groundwater use right belongs to anyone under private law. However, in relation to the permission for the use of groundwater in this case, the administrative agency has the authority to examine whether there is any concern about the use of groundwater in this case, and it does not have the authority to examine whether the right to use the groundwater belongs to anyone under private law. In addition, according to Article 15(4) of the Enforcement Decree of the Food Sanitation Act, if the Plaintiff did not have the right to use the groundwater in this case.

4. Conclusion

Therefore, the defendant's disposition of this case is unlawful and thus, it is decided as per Disposition by the court below.

Judges Kim Yong-ho (Presiding Judge)