Competence Dispute over Jurisdictional

Authority over Embankment in the Asan-

manCoastal Area

(16-2(A) KCCR 404, 2000Hun-Ra2, September 23, 2004)

Held, in a competence dispute over the jurisdictional authority between two local governments over the embankment built for the construction of the harbor in the ocean, i.e., the Asan-man coastal area, located between the above two local governments, that

Dangjin-gun, the petitioner, has the jurisdictional authority.

Background of the Case

In 1992, the chief administrator of the Shipping and Harbors Administration approved the harbor development project over the ocean, specifically the Asan-man coastal area, located between the Dangjin-gun and Pyeongtaek-si. Pursuant thereto, the administrator of the Incheon district Shipping and Harbors Administration in the capacity of the entity in charge of the project reclaimed the foreshore and constructed the embankment to be used as harbor facility, by completing the first-stage construction at the end of 1997. In the following year, upon request of the chief administrator of the Incheon district Shipping and Harbors Administration who was the entity in charge of the project, Pyeongtaek-si newly recorded in the Pyeongtaek-si land register the above harbor facility-purpose embankment. Subsequently, Dangjin-gun, the petitioner, on the ground that part of the above harbor facility-purpose embankment(hereinafter referred to as the 'embankment at issue in this case') belonged to the petitioner's jurisdiction according to the maritime demarcation on the topographical map published by the National Geography Institute in 1978, requested many times to cancel the registration of the embankment at issue in this case from the land register, which Pyeongtaek-si declined to comply with. The petitioner thereupon filed the request for competence dispute adjudication in this case,

claiming that the authority to self-government over the embankment

at issue in this case belonged to the petitioner.

Summary of the Decision

The Constitutional Court, in a five-to-four opinion, has issued the decision that the jurisdictional authority over the embankment at issue in this case belongs to Dangjin-gun, the petitioner. The summary of the majority opinion and the summary of the dissenting

opinion are respectively stated in the following paragraphs.

1. Summary of the Majority Opinion

A. The right to local self-government of the autonomous local government guaranteed under Section 1 of Article 117 of the Constitution includes the authority to exercise its self-government right within its jurisdictional area. 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. As such, it clearly demarcates the jurisdiction of each

local government against other local governments.

B. Section 1 of Article 4 of the Local Autonomy Act concerning the jurisdictional area of the autonomous local government merely 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 alteration of the jurisdictions of Shi/Gun and autonomous Gu shall be prescribed by the Presidential Decree," while there is no provision under the current law directly providing the local government with self-governing right over the public waters. However, relevant provisions of the individual statutes contain various provisions on the premise of the existence of the public waters that is subject to the jurisdiction of each local government. Also, the established position in academia, the precedents of the Supreme Court and the opinion of the Ministry of Government Legislation, as considered in totality, recognize the existence of the self-governing authority of the local government

over the public waters.

C. Unlike land, with respect to the ocean, there is no area specified to be subject to the jurisdiction of a particular local

government by way of the lot number assigned to real estate, nor is there a statute directly delimitating the demarcation between the administrative districts. However, first, there exists an administrative custom recognizing the maritime demarcation on the topographical map published by the National Geography Institute(hereinafter referred to as the 'maritime demarcation on the map') as the demarcation between different administrative districts in the exercise of the administrative authority over maritime affairs(e.g., fishing permit and license and act of fishing control under the Fisheries Act; occupation and use and permission to use over the public waters under the Public Waters Management Act) by the local government; second, such administrative custom has been in existence for a considerably long period of time; and, third, there exists a legal conviction with respect thereto on the part of the local governments and the general citizenry. Thus, the maritime demarcation on the map is acknowledged as the maritime demarcation, also under the precedents in the administrative law. Therefore, the 'previous jurisdictions' within the meaning of the above provision of the Local Autonomy Act may be confirmed by the maritime demarcation on the map, in the case of the public

waters.

From the standard of the maritime demarcation on the map as applied to the maritime area at issue in this case, the maritime area at issue in this case belongs to Dangjin-gun, the petitioner. Therefore, the petitioner has the jurisdictional authority over the

maritime area at issue in this case.

D. The self-governing authority of the local government exists over the public waters as examined above. Also, the geographical jurisdiction over the maritime area and the geographical jurisdiction over land that is reclaimed over the same maritime area should coincide. Therefore, in the 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. As the petitioner has the jurisdictional authority over the maritime area at issue in this case, the petitioner likewise has the jurisdictional authority over the embankment at issue in this case constructed in

the maritime area at issue in this case.

2. Summary of the Dissenting Opinion of Four Justices

A. Section 1 of Article 4 of the Local Autonomy Act 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 of 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. Pursuant to the official opinion of the National Geography Institute and the uncontested position of all departments and ministries of the government, the maritime demarcation on the map merely indicates the affiliation of the islands and does not have any binding legal force or weight as proof in the determination of the geographical jurisdiction of the local government. Therefore, the demarcation may not be determined by adopting this as the standard. In addition, there is no evidence sufficient to prove the existence of the time-long custom of deciding the maritime delimitation of the local government pursuant to the maritime demarcation on the map or the existence of the legal

conviction with respect to such custom.

In conclusion, the jurisdictional authority of the local government over the public waters does not exist, as there is neither the legal ground to recognize the jurisdictional authority of the local government over the public waters nor the evidence to prove such fact. Such geographical jurisdiction can only be

determined by law.

B. Even assuming the petitioner's jurisdictional authority over the maritime area at issue in this case, the petitioner's jurisdictional authority over the embankment at issue in this case is not recognized therefrom. The text of Section 1 of Article 4 of the Local Autonomy Act that states 'jurisdictions of local governments shall be the same as prescribed by the previous provisions of the Act' means that, if the administrative district has previously been determined, the district as determined as such will remain unchanged. Therefore, as the land formed by the reclamation of the ocean as in this case is newly created land that did not exist in the past, there is no room from the outset for the application of the standard decided by something that existed in the past. That is, the issue is not the question of how to determine the maritime administrative district on the public waters, but instead the question of how to determine the jurisdiction of newly created land. There is no statutory provision whatsoever with respect to how to determine the administrative district over the newly created land. If any changes in the geographical district between the cities and the provinces should be regulated by statute, inserting an area over which the geographical district has not been determined into a city or a province should also be regulated by statute, and it may not be

deemed that the jurisdictional authority over the ocean automatically extends to the land newly formed on the surface thereof. Therefore, as it is not possible to determine to which local government's geographical jurisdiction the embankment at issue in this case belongs until a statutory decision of the administrative district over the embankment at issue in this case, there is presently no statutory ground to deem that the petitioner has the authority of

self-government over the embankment at issue in this case.

Aftermath of the Case

Following the issuance of the above decision of the ConstitutionalCourt, the government revised the enforcement decree of the HarborAct to change the name of the harbor the embankment at issue in thiscase, from "Pyeongtaek Harbor" to "Pyeongtaek-Dangjin Harbor."