(영문) 부산지방법원 2018.9.20.선고 2018구합20765 판결

On December 20, 2017, the defendant revoked the return of the application for the restoration of the effect of the public waters reclamation license made to the plaintiff.

Reasons

1. Details of the disposition;

A. On May 29, 2014, the Plaintiff acquired a license for reclamation of public waters (license number E; hereinafter “instant reclamation license”) from the Defendant pursuant to Articles 28(1), 35, and 36 of the Public Waters Reclamation Act (hereinafter “Public Waters Act”).

B. The FF fishing village fraternity, the first acquisitor of the instant reclamation license, obtained authorization of the implementation plan on January 20, 2006 and obtained several revisions to the implementation plan on reclamation of public waters. The reclamation period of the instant reclamation implementation plan under the said implementation plan is from March 1, 2006 to April 3, 2017. The Defendant notified the Plaintiff on September 6, 2017 that the reclamation license of this case was invalidated as of April 3, 2017 pursuant to Article 53(1)3 of the Public Waters Act on the ground that the reclamation work was not completed within the said construction period specified in the implementation plan on reclamation of public waters.

D. Accordingly, the Plaintiff applied for the recovery of the validity of the instant reclamation license pursuant to Article 53(4) of the Public Waters Act and Article 63 of the Enforcement Decree of the Public Waters Act on the ground that the Plaintiff invested KRW 8,706,503,617 among the total business costs of KRW 27.5 billion to the Defendant, thereby achieving the 31.7% fairness (based on April 3, 2017). However, the Defendant rendered a disposition to return the said application on December 20, 2017 (hereinafter “instant return disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1-4, Eul evidence Nos. 1 and 2 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The progress rate of reclamation works in the instant case refers to the ratio of the total project cost to the total project cost incurred in the reclamation project, and the ratio of the total project cost incurred by the Plaintiff as of April 3, 2017, which is based on April 3, 2017, is 31.7% (i.e., 8,706,503,617 won/27.5 billion won). Thus, the Plaintiff satisfies the requirements prescribed in Article 63 of the Enforcement Decree of the Public Waters Reclamation Act, and thus, the return disposition in the instant case should be revoked.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Article 53(1)3 of the Public Waters Act provides that a reclamation license shall lose its effect if reclamation work is not completed within the period fixed in an implementation plan for reclamation. Article 53(4) of the same Act provides that where a person who lost the effect of reclamation license by falling under Article 53(1)3 executes reclamation work more than the construction progress determined by Presidential Decree, the reclamation license may be restored retroactively within one year from the date on which the effect of the reclamation license is lost is lost, and Article 63 of the Enforcement Decree of the Public Waters Act provides that a reclamation license shall be restored retroactively.

In other words, Article 53(4) of the Public Waters Act provides for the recovery of reclamation license whose effect is lost due to the failure to complete reclamation work within the period specified in the implementation plan for reclamation, and Article 53(2) of the Public Waters Act provides that the prior meaning of the work means the process or degree that the work is advanced and the prior meaning of the work is actually carried out. As such, Article 53(4) of the Public Waters Act and Article 63 of the Enforcement Decree of the Public Waters Act provide that “where reclamation work is carried out by more than 30/10 of the total work” means the case where the actual performance of reclamation work is more than 30/100 of the total performance, the disposition is made in excess of 34/100 of the total performance, and Article 34 of the Enforcement Rule of the Public Waters Reclamation Act provides that “the construction work is lawful after the completion of construction work within the period specified in the implementation plan for reclamation of public waters,” and Article 53(4) of the Public Waters Reclamation Act provides that “the construction work is lawful.”

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.