(영문) 인천지방법원 2014.2.20.선고 2012구합5736 판결

2. All the claims of the plaintiff Gap and the plaintiff succeeding intervenor are dismissed. 3. Litigation costs are assessed against the plaintiffs and the plaintiff succeeding intervenor.

Purport of claim

The Defendant’s rejection disposition against the Plaintiff on October 15, 2012 on the application for permission for occupation and use of public waters by the Plaintiff, and revocation of the imposition and reinstatement disposition of indemnity as of November 1, 2012, respectively.

Reasons

1. Details of the disposition;

A. Plaintiff B is a member registered with C religious organizations on March 1, 2006, and Plaintiff A is the representative of Plaintiff B.

B. On May 2, 2007, Plaintiff A obtained from the Defendant on May 2, 2007 the purpose of creating a parking lot site with respect to the public waters of 297 square meters (hereinafter “the public waters of this case”) from Kimpo-si, Kimpo-si, Kimpo-si, Kimpo-si, and obtained permission for occupying and using the public waters for five years from May 2, 2007 to May 1, 2012, and around that time, installed a drainage pipe in the public waters of this case and reclaimed it, and created a parking lot site by reclaiming it. Plaintiff B made a report on installation of charnel facilities to the Defendant on January 21, 2008, and then applied for permission for the use of the public waters of this case to Plaintiff A’s new public waters of this case (hereinafter “the instant charnel facilities” and “the instant charnel facilities site and building site”). Plaintiff B applied for permission for the use of the public waters of this case until the expiration of the use permission period of the public waters of this case.

D. Accordingly, on September 13, 2012, the Defendant issued a supplementary notice to the Plaintiff, by October 12, 2012, to the effect that the consent of the J local residents, documents verifying the current status of the application site B, and ③ the submission of a drainage plan and a repair statement to prevent disasters at the place of application, and on October 8, 2012, the above supplementary notice was unfair, and thus, the submission of a written opinion to withdraw it was not implemented. Accordingly, on October 15, 2012, the Defendant issued a notice to the Plaintiff to return the application for permission for occupation and use of the public waters of this case to the Plaintiff, and the Defendant issued an order to reinstate the public waters of this case to the public waters of this case by December 11, 2012 (hereinafter referred to as “the Public Waters Act”), and the Defendant issued an order to reinstate the public waters of this case by December 13, 2012 (hereinafter referred to as “the above order to reinstate the public waters of this case”).

F. After that, the procedure for compulsory sale by official auction of real estate to the Incheon District Court-affiliated K for the instant charnel facility site and building was in progress, L acquired ownership by winning a successful bid on August 14, 2013, and thereafter donated to the Plaintiff’s successor (hereinafter “participating”) who is the representative of the Plaintiff, and completed the registration of ownership transfer on November 22, 2013.

G. On November 25, 2013, the Plaintiffs and the Intervenor entered into a contract for the transfer of all facilities and rights related to the instant charnel facility, crematory facility, and public waters. On December 9, 2013, Plaintiff A filed a report on the closure of funeral facilities (inurnment facility) with the Defendant on the ground of the change of the owner and manager due to auction on the same day, the Intervenor filed a report on the change of the manager on the establishment of crematory facility (inurnment facility) and the report on the transfer of the rights and obligations to occupy and use public waters on January 3, 2014 (in the case of the Plaintiff’s funeral facility, the report on the closure of public waters (inurnment facility) was accepted on the following day. However, the Intervenor’s report on the installation of crematory facility and the report on the transfer of the rights and obligations to occupy and use public waters was rejected on January 14, 2014, the Plaintiff rejected the Plaintiff’s report on the installation of crematory facility on December 28, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 13, 16, 40 through 46, Eul evidence 5, 9 through 15, the result of the examination by this court, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. Main defense against the plaintiffs

The Defendant filed an application for permission to occupy and use the public waters of this case with the owner of the site and building of this case. While the lawsuit of this case is pending, the ownership of the above site and building was lost during the duration of the lawsuit of this case and the removal of the Plaintiffs’ interest infringement caused by each disposition of this case was resolved. As seen earlier, the Plaintiff lost ownership of the site and building of this case on August 14, 2013 during the lawsuit of this case. However, the permission to occupy and use the public waters of this case pursuant to Article 8(1) of the Public Waters Act does not require ownership or right to occupy and use the adjacent public waters of this case to the management agency for the occupancy or use of the land and building of this case. The Plaintiff obtained an application for permission to occupy and use the public waters of this case for the purpose of creating a site for the charnel facilities of this case and building of this case, and thus, the Plaintiff lost the right to occupy the site and building of this case, and thus the Plaintiff did not immediately have any interest in the subsequent disposition of this case.

However, Plaintiff B, as the installer and operator of the instant charnel facility, claimed that the Plaintiff had legal interest in the order to reinstate the instant charnel facility, and sought the revocation of the order to reinstate the instant charnel facility. On November 25, 2013, the pending lawsuit in this case, the Plaintiffs transferred all the facilities and rights to the instant charnel facility to the intervenors, and the Plaintiff reported the closure of the instant charnel facility on December 9, 2013 and received the following report. As seen earlier, Plaintiff B lost the status as the installer and operator of the instant charnel facility, and thus, the Plaintiff B cannot be deemed as having legal interest in the instant order to reinstate the instant charnel facility.

Therefore, the plaintiff B's lawsuit is unlawful because there is no legal interest.

(b) Main defense against the intervenor;

The defendant asserts that the plaintiff A's application for intervention on the public waters of this case is unlawful since the right to use the public waters of this case ceased to exist on May 1, 2012 after the expiration of the permission period.

However, the issue of whether an application for intervention by succession is a successor is determined by the claim of this lawsuit and the intervenor's assertion. In this case, the plaintiffs and the intervenor asserted that the application for permission for occupation and use of the public waters in this case constitutes an application for permission for change to extend the period of occupation and use permission, and thus the plaintiff's right to occupation and use public waters in this case continues to exist effectively and the intervenor succeeded to it. Thus, if it is not acknowledged as a result of the examination on the merits, if the existence of the right to occupation and use public waters and

Therefore, the defendant's assertion that the request for intervention by succession by the intervenor is unlawful is rejected as the main defense of safety.

3. Judgment on the merits

A. The plaintiff A and the intervenor's assertion

The Plaintiff asserted that each of the dispositions of this case is unlawful on the following grounds, and the Intervenor asserted that the Plaintiff succeeded to the Plaintiff’s status after being transferred the status of the holder of occupation and use rights to the public waters of this case during the course of the instant lawsuit, and that the Plaintiff sought revocation of each of the dispositions of this case. (1) The Defendant’s demand for the consent of the J residents as supplementary measures to the application for occupation and use permission of the public waters of this case is without merit and there is no ground in the relevant statute, and the J residents’ demand for revocation of the permission for the establishment of the charnel facilities or for supplementation of matters that are virtually impossible to supplement for the purpose of returning the application for permission to the crematory facilities to the Plaintiff.

2) The application for permission to occupy and use the public waters of this case is deemed to be an application for extension of the permission period for occupancy and use of the existing public waters. According to Article 7(1) of the Enforcement Rule of the Public Waters Act, where only the period of permission to occupy and use the public waters is changed, it is not required to submit the topographical map, the planning plan, the Gu plan, and the design drawings in addition to the consent of the right holder related to occupancy and use of the public waters. Thus, the defendant's request for submission of the relevant documents confirming the current status of the application site as supplementary matters, the drainage plan and the repair statement (hereinafter referred to as the "repair statement, etc.") to prevent the disaster at the site of the application site. In addition, it is erroneous for the defendant to make a request for supplementation on two occasions, and it is against Article 14 of the Enforcement Decree of the Civil Petitions Treatment Act (hereinafter referred to as the "Civil Petitions Treatment Act"), and the repair statement, etc. may be submitted additionally, if necessary, since it is not only the documents already submitted at the time of the application for permission to use of the public waters.

3) Not only requires strict expenses to restore the public waters of this case but also when the public waters of this case are not used as a parking lot, the operation of the charnel facility of this case became practically impossible and thereby the Plaintiff suffered enormous damages due to each of the dispositions of this case, but also, in light of the fact that the Defendant’s public interest has little effect, each of the dispositions of this case is deviating from and abusing discretionary power in violation of the principle of proportionality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Character of the application for occupancy and use permit of the public waters in this case

First, with respect to whether an application for permission to occupy and use the public waters of this case constitutes an application for permission to extend the permitted period, the effect of the administrative disposition is invalidated upon the lapse of the permitted period, if the term of validity is determined generally. However, if the permitted period is unreasonably short due to the nature of the permitted business, it may be interpreted that considering the revision of the condition upon the expiration of the permitted period, not the term of validity itself, considering the permitted period as the duration of the permitted business. However, in such a case, an application for the extension of the permitted period shall be filed before the expiration of the period of permission, unless there are special circumstances to extend the permitted period, and if the permitted period expires without such extension, the validity of the permission shall be deemed null and void (see, e.g., Supreme Court Decision 2005Du12404, Oct. 11, 200

In addition, as long as the previous permission expires due to the expiration of the existing permission period, an application for permission to change the period thereafter is sought for an administrative disposition that simply extends the term of validity on the premise of the previous permission disposition, and is a new permission separate from the previous permission disposition.

Therefore, in such a case, the permitting authority should regard it as a new application for permission and determine whether it satisfies the requirements for permission under the relevant provisions of the law (see Supreme Court Decision 94Nu11866, Nov. 1, 1995).

On May 2, 2007, Plaintiff A obtained the permission from Defendant for occupancy and use of the public waters of this case from May 2, 2007 to May 1, 2012. However, the application for the permission to extend the permission period after the expiration of the permission period was filed on August 28, 2012 after the expiration of the permission period. As seen earlier, Plaintiff A applied for the permission to occupy and use the public waters of this case for which the permission period was granted on May 2, 2007 after the expiration of the permission period. As such, it is reasonable to view that Plaintiff A applied for the permission to use and use the public waters of this case, which was granted on May 1, 2012 by the expiration of the permission period. As such, the application for the permission to use and use the public waters of this case, which was made after the expiration of the previous permission period, as an application for the permission to occupy and use new public waters separate from the previous permission disposition.

Therefore, the Plaintiff’s assertion that the application for permission to occupy and use the public waters of this case is an application for permission to change the existing period for occupancy and use.

2) Judgment on the Intervenor’s assertion

As seen earlier, the previous occupancy and use permit for the public waters of this case that the Plaintiff received was invalidated on May 1, 2012, and thus, insofar as the Plaintiff did not obtain a new occupancy and use permit, the Intervenor entered into a contract with the Plaintiff on November 25, 2013 to transfer or acquire the occupancy and use permit for the public waters of this case with the Plaintiff on November 25, 2013, and cannot be deemed to have succeeded to the status of the owner of occupancy and use right as effective from the Plaintiff.

Therefore, the Intervenor’s claim based on the premise that the Intervenor succeeded to the status of the right to occupy and use the public waters of this case from the Plaintiff A cannot be accepted.

3) Judgment on Plaintiff A’s assertion

A) Part demanding supplementation to submit written consent from residents

(1) As to the Plaintiff’s assertion that the request for submission of written consent by the resident was unlawful without any legal basis, the Defendant asserts that it is lawful as it is based on Article 12 of the Public Waters Act, Article 12(1)6 of the Enforcement Decree of the same Act, and Article 4 of the Enforcement Rule of

Article 12 of the Public Waters Act provides that a right holder shall not grant permission except where the State or a local government intends to occupy and use the relevant public waters for public activities where a right holder consents to such occupancy and use. Article 12 (1) 6 of the Enforcement Decree of the Public Waters Act provides that the owner or occupant of a land or artificial structure adjacent to one of the right holders refers to the owner or possessor of the adjacent land or artificial structure. According to the above provisions, the owner or possessor of the adjacent land or artificial structure is not all the owner or possessor of the land or artificial structure adjacent to the relevant public waters, but only the person who has the "right likely to be damaged by the occupancy or use permit" is entitled to consent to the occupancy or use permit.

한편 공유수면법 시행령 제12조 제4항은 공유수면 점용·사용허가로 인하여 피해가 예상되는 권리에 해당하는지 여부를 판단함에 있어 해당 점용·사용허가로 인하여 권리자가 그 권리의 목적에 따라 공유수면 또는 인접 토지를 이용할 수 없게 되는지 여부(제1호), 피해를 방지하는 시설의 설치와 같은 조치를 하지 아니하고서는 당해 공유수면 또는 인접 토지를 적정하게 이용할 수 없는지 여부(제2호)의 기준을 검토하여야 한다고 규정하고 있고, 일반적으로 당해 공유수면의 권리자들 사이에서는 공유수면의 공공(公共)적 성격에 따라 부득이하게 발생하는 이용관계의 번잡함이나 일정 정도의 불편함 등은 수인(忍)할 의무가 있는 점 등에 비추어 볼 때, '인접한 토지. 인공구조물의 소유자 또는 점유자'가 해당 공유수면의 점용·사용허가로 인하여 입을 것으로 예상되는 '피해'의 의미는 해당 공유수면의 주된 이용목적과 효과, '인접한 토지 · 인공구조물의 소유자 또는 점유자'의 권리 내용과 예측가능성 등을 종합할 때 '인접한 토지 · 인공구조물의 소유자 또는 점유자'들이 보유한 구체적인 법률상 이익이 통상적인 정도를 초과하여 침해되는 것을 전제로 하여 새겨야 한다.

In light of the above-mentioned statutes and legal principles, as to whether the J residents are the owners or occupants of adjacent land and tools adjacent to the public waters who are likely to suffer damage due to the occupancy and use permit, the following circumstances revealed in the records and pleadings, namely, ① the public waters of this case are considerably far away from the village in which J residents reside, and the access roads are used differently from the village. ② The agricultural land located adjacent to the public waters of this case is installed a farm road and irrigation, and it is not deemed that the access road to the public waters of this case is used for agriculture or for agriculture or water draind from the public waters. (Therefore, it is not difficult to view that the public waters of this case, as alleged by the Defendant, would cause inconvenience to the passage of neighboring residents by using the public waters of this case as the parking lot of the instant charnel facilities of this case). ③ The public waters of this case is installed in the site and building, and there is no evidence to see that the use permit of the public waters of this case goes beyond the limit of admission to the public waters of this case.

Therefore, it cannot be said that the defendant's demand for submission of written consent from residents pursuant to Article 12 of the Public Waters Act and Article 12 (1) 6 of the Enforcement Decree of the same Act is lawful.

(2) However, an occupancy or use permit of public waters under the Public Waters Act is a disposition that grants a specific person the exclusive right to use public waters, and in principle, the determination of whether or not the disposition is made belongs to the discretion of an administrative agency (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2004). In such discretionary act, the applicant may be required to submit necessary documents or materials to determine whether or not the disposition is made, unless otherwise expressly provided for in the relevant Acts and subordinate statutes. However, even in a case where a non-permission disposition is rendered on the grounds that such documents or materials were not submitted, it shall not deviate from or abuse discretion due to misconception of facts, violation of the principle

However, the aforementioned circumstances are as follows: (a) even if it is assumed that the installation of crematory facilities in the site and building of the instant charnel facilities may cause environmental pollution, etc., the occupancy and use of the public waters of this case is necessary for the instant charnel facilities currently being installed and operated as well as the crematory facilities that the Plaintiff intended to install and operate in the future; and (b) at the time of applying for permission to occupy and use the public waters of this case, the report on installation of the Plaintiff A’s crematory facilities was denied; and (c) even if the drainage capacity of the public waters of this case is insufficient, the Defendant’s demand for written consent of the J residents, other than supplementation of the above drainage facilities, for submission of documents that are not directly related to the drainage capacity, is unreasonable. In light of the above, the Defendant’s demand for submission of written consent from the J residents to determine whether to permit the occupancy and use of the public waters of this case and the rejection disposition of this case on the ground of its failure constitutes an abuse of discretionary power, in violation

B) The portion requiring supplementation of repair plans, etc.

(1) First, as to whether the Defendant requested the submission of a repair plan, etc. due to erroneous statutory interpretation under Article 7(1) of the Enforcement Rule of the Public Waters Act, it should be deemed that the application for permission to occupy and use the public waters of this case is a new application for permission to change the extended period, not a request for permission to change the existing period. Therefore, the Plaintiff A’s above assertion on a different premise cannot be accepted.

(2) Next, Article 13(1) of the Enforcement Decree of the Civil Petitions Treatment Act provides that when there is any defect in a civil petition document, a petitioner shall be required to supplement the civil petition document within a reasonable period specified in the case where it violates Article 14 of the Enforcement Decree of the Civil Petitions Treatment Act. Article 14(2) of the Enforcement Decree of the same Act provides that where a petitioner requests the extension of the period required for supplementation by clarifying the period required for supplementation in the reason that the petitioner cannot supplement the petition document within the period requested for supplementation, the period for supplementation must be determined after considering it. Article 14(3) of the same Act provides that where the petitioner fails to supplement the civil petition document within the period under paragraph (2), the petitioner may re-request supplementation. According to each of the above provisions, the administrative agency shall re-determine the period for supplementation only where the petitioner requests the extension of the period for supplementation, and it does not require the extension of the period for supplementation or the compulsory request for supplementation,

Therefore, even if the Defendant did not request the Plaintiff A to submit a repair statement, etc. again and did not comply with the first request for supplementation, it cannot be deemed that the Defendant violated Article 14 of the Enforcement Decree of the Civil Petitions Treatment Act.

(3) Lastly, as to whether the Defendant’s rejection disposition of this case was deviates from or abused by discretion on the ground that the submission of the repair plan, etc. was not supplemented, the Defendant requested the Plaintiff to submit the repair plan, etc. by setting the period for supplementation between one month and one month, and considering the situation at the time, it does not seem too short. The Plaintiff A did not request the extension between the above supplement period, but rather submitted to the Defendant a written opinion to the effect that the above supplement request is unreasonable in the Plaintiff B’s name. At the time, the Plaintiff at the time, the Plaintiff (a) was able to file an application for the occupancy or use permit of public waters by completing the documents, such as the repair plan, even if the application for the occupancy or use permit of this case was not submitted. In light of the above, it cannot be deemed that the Defendant’s rejection disposition of this case on the ground that the complementary measures such as the repair plan

C) Determination on the assertion of violation of the principle of proportionality

A permit to occupy and use public waters under the Public Waters Act ought to be determined by free discretion in a case where deemed appropriate for the management agency of public waters to contribute to the prevention and mitigation of public danger and injury and the promotion of public welfare (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2004). In a judicial review of such discretionary act, considering the room for public interest judgment based on the discretion of an administrative agency, the court should only examine whether the act in question is deviation or abuse of discretionary power without drawing an independent conclusion, and the examination of whether the discretionary power deviates or abuse is subject to such determination (see, e.g., Supreme Court Decision 2009Du1960, Feb. 25, 2010).

In light of the following circumstances revealed in the records and pleadings, i.e., ① the part of the Defendant’s request for submission of the written consent of the resident among the Defendant’s request for the permission for occupation and use of the public waters of this case is unlawful, but the part of the request for submission of the repair plan is lawful. ② The Defendant did not comply with the request for supplementation after the period for supplementation expires; ② the above repair plan appears to be an important factor in determining whether to permit occupation and use of the public waters of this case in consideration of prevention and mitigation of public danger; ③ the Plaintiff’s considerable cost for restoring the public waters of this case is naturally borne by the Plaintiff A when the period for occupation and use of the public waters of this case expires (Article 21(1) of the Public Waters Act); ④ the public interest in order to promote the public interest by preserving and managing the public waters continuously so that the public waters can be used as a parking lot is no longer small than the private interest of the individual who wants to use the public waters of this case, and thus, the person who occupied and used the public waters of this case cannot be deemed to have exceeded the discretionary discretion.

4. Conclusion

Therefore, the plaintiff B's lawsuit is dismissed as illegal, and the plaintiff A and the intervenor's claim is dismissed as it is without merit. It is so decided as per Disposition.