Jurisdictional Dispute over Reclaimed Field Case

(18-2 KCCR 319, 2003Hun-Ra1, August 31, 2006)

Held, the Constitutional Court decided that a local government's autonomy exists on the reclaimed land which was made by filling up public waters and the boundary decision can be made based not only upon ordinances but also upon administrative custom. The Court held that the Petitioner has the jurisdictional authority.

Background of the Case

Since December, 1982, pursuant to the Act on Industrial

Location and Development, Jeollanamdo has made and forwarded the plan for Regional Industrial Complex Project by reclaiming the sea faced the Petitioner, Gwangyang-Si(hereinafter referred to as "the Petitioner"), the Respondent, Suncheon-Si(hereinafter referred to as the "the Respondent") and Yeosu-Si, which is not a party in this case. Stock Company "A" got a parcel of the reclaimed land, 446,283㎡, from Jeollanamdo after the filling-up was completed. "A" built a plant as well as accompanying facilities and those are now in full operation. Meanwhile, according to the maritime demarcation on the topographical map published by National Geography Institute, the parceled land and the buildings including the plant are located between the above two local governments. Pursuant to the local tax law, the Petitioner has imposed taxes on A's land and its buildings, located within its jurisdictional authority. Meanwhile, on July 1, 2003, the Respondent put city plan tax on the Buildings as soon as construction of those buildings were in complete. A, raising the question about who has the authority to be recipient of the taxes, placed the payment into deposit in Seoul District Court. On August 28, 2003, the Petitioner thereupon filed the request for competence dispute adjudication in this case, claiming that the authority to self-government over the Industrial Complex, parceled out to A by Jeollanamdo belonged to the Petitioner.

Summary of the Decision

The Constitutional Court, in 5 : 3 decision, has issued the decision that the jurisdictional authority over the taxation at issue in this case belongs to Gwangyang-Si, the Petitioner. The summary of majority opinion and the summary of dissenting opinion are respectively stated in the following paragraphs.

1. Majority Opinion of Five Justices

Concerning the jurisdictional area of the autonomous local government, Article 4 Paragraph 1 of the Local Autonomy Act provides that "the names and jurisdictions of local governments shall be the same as prescribed by the previous provisions of the Act, and any alteration, abolition, establishment, division or consolidation thereof shall be carried out pursuant to the provisions of the Act. But the Si/Gun and autonomous Gu shall be prescribed by the Presidential Decree." About the issue of jurisdictional area, the Constitutional Court held that the jurisdictional area of a local government is a constituting element of the local government along

with its residents and self-governing right, and refers to the geographical bounds where the self-governing right may be exercised[16-2(A) KCCR 404, 2000Hun-Ra2, September 23, 2004]. Therefore, the self-governing authority of the local government exists over the public waters as well.

Pursuant to the record at issue in this case, based upon the General Map Measurement Effectuation Rule (1914), an official order from the Chosun government-general, the jurisdictional boundary over the reclaimed field is to be determined by the topographical map published in 1918. In addition, in case of the reclamation of the public waters that was under the geographical jurisdiction of a particular local government in the past, such reclaimed land automatically lies under the geographical jurisdiction of that same local government, unless altered by a separate statute or presidential decree. Since there exists no administrative custom over the public waters where the reclaimed field at issue in this case amounting to change the old boundary between the Petitioner and the Respondent, the maritime demarcation on the topographical map published by National Geography Institute in 1969 which is closest to the year of 1948 when Article 4 Paragraph 1 of the Local Autonomy Act was enacted should be the normative boundary dividing jurisdictional authority of two local governments. Meanwhile, according to the presidential decree, 'Official regulation on jurisdictional change of Si, Gun, Gu, Eup' which was made in 1973, 'JangDo' and 'SongDo' which had been under the jurisdiction of GwangyangGun GollakMyun, Jeollanamdo, became a part of jurisdictional authority of YeocheonGun YulchonMyun, Jeollanamdo in July 1st of 1973, the maritime demarcation on the topographical map, published in 1974 would be the final standard for the boundary decision at issue in this case since the map reflects the jurisdictional change happened in 1973.

In conclusion, considering the standard of the maritime demarcation on the map published by National Geographic Information Institute in 1974, the jurisdictional authority over the part of landfill at issue in this case, which is indicated as belonging to Gwangyang-Si's jurisdiction, belongs to the Petitioner, therefore the Respondent's taxation on the objects which the Petitioner has the jurisdiction over is not valid because such action was taken without any legal authority.

2. Dissenting Opinion of Three Justices

Article 4 Paragraph 1 of the Local Autonomy Act historically regulates the delimitation of the land where the land register has

actually or possibly been readjusted, and does not intend to regulate the ocean that is the public waters, and there has been no affirmation by law so far in regards to the geographical jurisdiction of the local government over the ocean. Therefore, the above statutory provision may not be directly interpreted to mean that the geographical jurisdiction of the local government includes the ocean. Futhermore, the determination of the geographical jurisdiction of the local government cannot be made based upon the map from National Geography Institute which has no legally binding force. Meanwhile, the decisions on who has the jurisdictional authority over the public waters, and who manages such place, are the policy matters the country has the authority over. If there is no legal ground to recognize the jurisdictional authority of the local government over the public waters, the authority can be said to belong to the country. In short, as there is no evidence to claim the local government has the jurisdictional authority over the reclaimed land at issue in this case, this case should be dismissed.