[1] Whether it is against the essence of the local autonomy system guaranteed by the Constitution or the principle of prohibition of comprehensive delegation, in Article 4(3) through (7) of the Local Autonomy Act that does not specifically stipulate the substantive criteria for determination or consideration of the determination or decision concerning the attribution of reclaimed land under the jurisdiction of the Minister of Public Administration and Security and its affiliated

[2] Whether the Minister of Public Administration and Security and its affiliated commission have a wide discretion in establishing a local government to which reclaimed land belongs (affirmative), and the limit of such discretion

[1] Articles 117, 118(1), 120(2), 122, and 123(2) of the Constitution of the Republic of Korea; Article 4 of the Local Autonomy Act / [2] Article 4(1) and (3) of the Local Autonomy Act; Article 27 of the Administrative Litigation Act

[2] Supreme Court Decision 2010Hu73 decided Nov. 14, 2013 (Gong2013Ha, 222)

Militarysan Market (Law Firm, Kim & Lee LLC et al., Counsel for the defendant-appellant)

The Minister of Public Administration and Security (Attorney Seo-young et al., Counsel for the defendant-appellant)

Kim Jong-si (Law Firm LLC, Attorneys Gangnam-gu et al., Counsel for the defendant-appellant)

December 10, 2020

The plaintiff's claim is dismissed. The plaintiff is assessed against the plaintiff, including the part arising from supplementary participation.

Of the tide embankments whose reclamation has been completed in the Saemangeum Sea Area as of November 13, 2015, ① the local government, which belongs to the Si/Gun of Jeollabuk-do, shall be revoked in the order of 1, 2, 42, 3, 7, 6, 8, 12, 21, 15-2, 15, 15-1, 15-1, 11, 10, 9, 5, 54, 50, 48, 47, 46, 45, 44, 43, 49, 49, and 0 in the order of 3, 2, 2, 36, 2, 36, 38, 2, 36, 2, 34, 37, 37, 45, 2, 2, 2, 36, 2, 36, 2, 24, 37, 35.

1. Details and details of the instant decision

The following facts are not disputed between the parties, or can be acknowledged by considering the whole purport of the pleadings as a whole in the descriptions of Gap evidence 1, 2, and 3-1 to 3, Gap evidence 5, and 6.

A. Saemangeum Development Project is a national project consisting of 33.9 km (including drainage section and connecting road section) at the maximum world’s maximum tide embankment that connects fatheran-gun, Jeollabuk-do, Kim Jong-si, and Gunsan to the members of the Gun, Jeollabuk-do, and Gunsan-si, and reclamation of its inside to create two drainage lock gatess, 28,290 majors of land and 11,810 majors of fences.

B. Each tide embankment, which is an external facility of reclaimed land of public waters, consists of the section 1, as shown in the annexed Form 2, that connects 4.7 km between e.g., e., e., g., e., g., e., g., e., g. g., d. d. g. d. d. d. g. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. g., g. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d., g.

C. On March 12, 2013, the Minister of Agriculture, Food and Rural Affairs applied for the determination of the local government to which the reclaimed land in the 1st and 2th Saemangeum Seaside, which will belong, based on Article 4(4) of the Local Autonomy Act, to the Defendant (which was amended by the Government Organization Act, and whose organization and name was changed several times; hereinafter referred to as “Defendant”).

D. In full view of the following circumstances on October 26, 2015, the Central Dispute Mediation Committee of the local government (hereinafter “Committee”) under the jurisdiction of the Defendant to which the local government belongs, as the Gun in Jeollabuk-do, a Gun in which the local government, from among the reclaimed land of the embankment No. 1, the part of the reclaimed land of the Saemangeum Embankment No. 1 (hereinafter “S. 1”) the remainder (1, 2 omitted), excluding the 1, 2, 3, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 2, 2, 2, 2, 2015 (hereinafter “the Committee”), made a resolution on the part of the reclaimed land of the Saemangeum Embankment No. 2, which

① According to the office building dust on the development of land on the inside of the Saemangeum Sea Embankment, the determination of the embankment No. 1 and the embankment No. 2 under the jurisdiction of the Seoan-gun is likely to be more closely adjacent to the road network connected to the inland land important for the efficient utilization of the national land.

(2) Embankments 1 and 2 are formed respectively in connection with the land landing in the west-gun and Kim Jong-si. Residents who will reside in each reclaimed land are provided with administrative services and various infrastructure, such as roads, electricity, waterworks, telecommunications, etc. by the neighboring local governments are in accord with the efficiency of administration.

(3) The Mangyeong River and the Dogjin River have achieved natural boundaries in the Gunsan River, Kim Jong-do, and the jurisdiction of the embankments 1 and 2 is based on the Mangyeong River and the Dogjin River, the entire Saemangeum area of the Saemangeum River may be clearly formed by classifying the areas by natural geographical features. Water control systems constructed in accordance with the east-do, Dogyeong River and Mangyeong River and the Dogjin River and to be used as roads may also be formed as artificial structures separating the reclaimed land's jurisdiction.

E. On November 13, 2015, according to the resolution of the Committee, the Defendant rendered a decision to determine the local government to which the tide embankment No. 1 belongs as the father-gun and the local government to which the tide embankment No. 2 belongs as the Kim Jong-si (hereinafter “instant decision”), and notified the Plaintiff, the father-Gun, and the Kim Jong-si, etc. of the decision.

F. On November 27, 2015, the Plaintiff filed the instant lawsuit seeking revocation of the entire decision of this case with the Supreme Court.

2. Summary of the plaintiff's assertion

A. If the criteria for maritime boundaries of this case are excluded from the previous maritime boundaries of Article 4(3) through (7) of the Local Autonomy Act, this is an unconstitutional law that infringes on the essence of the local autonomy system guaranteed by the Constitution and goes against the principle of prohibition of comprehensive delegation. The determination of this case is unlawful as it is based on the unconstitutional law.

B. The Defendant’s exercise of discretionary power over the determination on the jurisdiction of reclaimed land must appropriately balance the interests of the relevant local governments and their residents. However, the instant determination is erroneous in the misapprehension of discretionary power due to the lack or omission of the consideration of important factors or lack of legitimacy and objectivity in balancing the interests of the factors to be considered in the following point. At least, a tide embankment No. 2 should belong to the jurisdiction of the Gunsan City.

(1) The Saemangeum Sea Embankment area belongs to the waters under the jurisdiction of Gunsan-si, most of which are based on the maritime boundary lines since 1918.

② Under the Saemangeum Master Plan, an industrial development axis connecting the Saemangeum Industrial Complex, the International Business Area, and the Saemangeum New Port is promoting the linkage and development with the Gun Industrial Complex. Gunsan has included most of the embankments 1 and 2 in the basic urban planning, and Kim Jong-si has no experience in the operation of ports, unlike the Gunsan which has operated the Gun Industrial Complex.

(3) The current tide embankment No. 2 is not physically connected with Kim Jong-si and the Dogjin River does not play a role as a boundary because the river section ends before the area reaches the sea area.

(4) Present military and mountainous districts currently manage infrastructure facilities (such as roads, electricity, waterworks, drainage, etc.) for tide embankments 1 and 2 and provide services, such as cleaning and removal.

(5) Islands in the vicinity of banks 1 and 2 or the medical records belonging to the areas of banks 1 and 2 shall be under the jurisdiction of the Gunsan-si, and fishermen in the Gunsan-si shall suffer the largest damage due to the Saemangeum Development Project.

3. Determination

A. As to the assertion that Article 4 of the Local Autonomy Act is unconstitutional

1) Article 117(1) of the Constitution of the Republic of Korea provides that local governments shall handle affairs concerning the welfare of residents and manage property, and establish regulations concerning autonomy within the scope of statutes (Article 117(1)); that provides that matters concerning the types of local governments and the organization and operation of local governments shall be prescribed by Acts while generally guaranteeing autonomous administration by local governments (Articles 117(2) and 118(2) (see Constitutional Court en banc Decision 2015Hun-Ma3, Jul. 16, 2020).

2) Article 4(1) of the Local Autonomy Act provides that “The name and zone of a local government shall be the same as before, and the name and zone of a local government shall be changed, or the abolition, establishment, division or consolidation of a local government shall be prescribed by Act: Provided, That the boundary change of a district under the jurisdiction of a local government and the change of a Chinese name shall be prescribed by Presidential Decree.” Notwithstanding Articles 4(3)1 through 4(1) of the Public Waters Management and Reclamation Act, a local government to which a reclaimed land under the Public Waters Management and Reclamation Act (hereinafter “ reclaimed land”) belongs shall be determined by the Minister of the Interior and Safety pursuant to Articles 4(4) through (7) of the same Act, and Article 4(4) through (7) of the same Act provides that the Minister of the Interior and Safety and the Committee under his/her jurisdiction shall comply with when making a decision on the reversion of the jurisdiction of a reclaimed land, and the substantive standards

3) According to Article 67 of the Act on the Establishment, Management, etc. of Spatial Data, Article 58 subparag. 17, Article 18 subparag. 18, and Article 19 of the Enforcement Decree of the same Act, public waters on land are waters or waterways existing on “land,” which is the object of real rights, and are determined by the competent local government on the basis of the land. However, as the bottom floor of public waters on sea is not considered as “land,” which is the object of real rights, it constitutes a case where a reclaimed land is newly created upon the execution of reclamation works. Since a new created land does not belong to any local government, the State shall determine the competent local government in the form of a decision made by the Minister of Public Administration and Security pursuant to the main sentence of Article 4(1) of the Local Autonomy Act or Article 4(3) of the Local Autonomy Act, and no such new local government shall belong to any local government (see Constitutional Court en banc Decision 2015Hun-Ga36, Jul. 16, 2020).

4) In full view of the fact that the jurisdiction of a local government does not fall under the core area and essential area of the local autonomy system, but falls under the scope of the legislative formation authority; that is, the local government is determined only by the decision of the State in the case of a maritime public waters reclaimed land; that is, the State should take into account the efficient and balanced utilization, development, and preservation of the land (Articles 120(2) and 122 of the Constitution), balanced development between regions (Article 123(2) of the Constitution), and balanced development between regions (Article 123(2) of the Constitution) when it determines a local government having jurisdiction over a maritime public waters reclaimed land, and that it is difficult to provide more specific criteria for consideration or substantive determination in law is difficult in legislation and technical aspects. The Plaintiff’s assertion in this part is without merit.

B. As to the assertion of deviation and abuse of discretionary power

1) Relevant legal principles

In light of the legislative intent of Article 4 of the Local Autonomy Act (amended by Act No. 9577 of Apr. 1, 2009) which newly established a new system to determine a local government to which reclaimed land belongs by the Minister of the Interior and Safety, the validity of the customary law with regard to the jurisdiction of reclaimed land was limited to the amendment of the above Local Autonomy Act, and the Minister of the Interior and Safety and its affiliated committees have a wide range of discretion when determining a local government to which reclaimed land belongs. However, the discretion of formation is not unlimited, but limited to the comparison and balancing of relevant interests by comprehensively taking into account all relevant interests. The Minister of the Interior and Safety and its affiliated committees are not unlimited, but the Minister of the Interior and Safety and their affiliated committees are not required to take into account such interests, or where there is no matter to be included in the benefits subject to consideration of the profit balancing, or where there is a lack of legitimacy and objectivity, the competent decision should be deemed unlawful.

Considering the above purport of amendment of the Local Autonomy Act, when the Minister of Public Administration and Security and the competent commission determine a local government to which reclaimed land belongs, it should generally consider the following (see Supreme Court Decision 2010Do73, Nov. 14, 2013).

(1) The competent authority shall be determined in consideration of the detailed land use plan of each area within reclaimed land and organic use relationship with neighboring areas, and shall ensure efficient use of new land.

(2) A reasonable boundary shall be established based on the situation in which reclaimed land is used, in consideration of the shape of connection between reclaimed land and another local government's jurisdiction, connection and distance between reclaimed land and another local government's jurisdiction, and the location of natural features, such as roads, rivers, canals, etc., which can be easily recognized as boundary within the jurisdiction of reclaimed land.

(3) The efficiency of administration shall not be significantly impaired considering various factors, such as the connection and distance between reclaimed land and neighboring local governments, the installation and management of infrastructure, such as roads, ports, electricity, waterworks, telecommunications, etc., the prompt provision of administrative services, and the ability to cope with emergencies.

(4) In consideration of the transportation relationship between reclaimed land and neighboring local governments, accessibility from outside, etc., a local government’s inclusion in the jurisdiction of the residents of reclaimed land in the residential and living convenience shall be considered.

(5) Since a neighboring local government and residents lose adjacent public waters due to the execution of reclamation works, the historical and practical interests of local governments that lose such public waters as a result thereof, and the basis of living and economic interests of their residents, shall be considered.

(6) In particular, in cases of a reclamation project, the whole reclamation project plan of which has been formulated and implemented in a phased and phased manner according to the Gu’s plan, and where it is inevitable to first determine the jurisdiction over certain areas of which reclamation has been completed, due to administrative needs, etc. for administrative support for the part of which reclamation has been completed, the determination on the jurisdiction over such part of the reclamation project may have considerable impact on the determination on the determination on the jurisdiction of the remaining areas of reclamation. Therefore, even in cases where a determination on the jurisdiction is made only for some areas, the determination on the jurisdiction shall be made by taking into account the framework of the overall area of the area prearranged for reclamation project concerned, comprehensively taking into account the overall implementation plan of the reclamation project concerned, the land use plan and purpose of the reclaimed project, the plan for the development and use of ports, etc. If an inappropriate jurisdiction is partially established in light of the Gu’s overall jurisdiction, there is a risk that the dispute between local governments may arise between them whenever the competent authority is determined, and the social and economic expenses may increase, and it is not desirable to exclude the jurisdiction over each area subject to reclamation.

2) Determination on the instant case

Upon examining the following circumstances in light of the legal principles as seen earlier, Gap evidence 1, 2, 5, 6, 7, and 33-1, 2, 49, 50, Eul evidence 1 through 5, Eul evidence 2, 1, 2, 15, Eul evidence 21-1, 2, Eul evidence 2, and Eul evidence 23-2, 24, 25, 27, 46, and 48 as a whole, and the overall purport of arguments and arguments, it is difficult to view that the defendant's decision in this case was without any comparison and balancing of all relevant benefits while making the decision in this case, or omitted matters which should be included in the subject of consideration of the balancing of interests, or where the decision in this case was made without any justification and objectivity, it cannot be deemed an unlawful disposition that deviates from or abused discretion.

① It is difficult to interpret the Saemangeum Master Plan to mean that a local government should have jurisdiction, since the scale of industrial development is connected from the Gun Industrial Complex to the International Business Area and Saemangeum New Harbor from the Gun Industrial Complex. Furthermore, according to the Master Plan for the Development of the Saemangeum New Harbor (No. 2010-88) and the Second Master Plan for the Construction of New Harbor (No. 2019-122 of the Ministry of Land, Transport and Maritime Affairs) of the Ministry of Land, Transport and Maritime Affairs, the Saemangeum Harbor has the management authority as the "National Trade Port" (Articles 3(2)1 and 20(1) of the Harbor Act, Article 3(1) [Attachment Table 1] and (2) [Attachment 2] of the Enforcement Decree of the same Act, and the "Korea Regional Maritime Affairs and Fisheries Office, which is a specialized administrative agency affiliated with the Ministry of Oceans and Fisheries and Fisheries, will have jurisdiction over the Si of Gun under the jurisdiction of the Gun New Harbor.

② On November 17, 2010, the Defendant decided to vest the reclaimed land of the embankment Nos. 3 and 4 in the Saemangeum Sea Embankments in the Gun, and the head of the Si/Gun/Gu filed a lawsuit seeking revocation of the above decision. The Supreme Court held that, under the Supreme Court Decision 2010No73 Decided November 14, 2013, the whole jurisdiction of the area subject to reclamation can be classified into the zone A (Silsan City) of the annexed drawing in the whole Saemangeum Sea Reclamation area and the zone adjacent to the Silsan City, Kim Jong-si, and B (Silan Gun), and the whole area of the area subject to reclamation could be recognized as falling under the jurisdiction of the Si/Gun, unless there are any special circumstances such as changes in future conditions, such as connections to the existing land, accessibility, anticipated residents' lives, efficiency of administrative services, etc.

③ On the basis of the completion of reclamation, Mangyeong River and Mangjin River are largely divided into A, B, and C as shown in Attached Form 2. The Ministry of Land, Infrastructure and Transport stated that it was a plan to review the change of the closing point of the river area into a point adjacent to the sea according to the entire development plan, and the Saemangeum Development Agency also has the same plan.

(4) Taking into account both the part of reclaimed land on the side of a tide embankment, Subparag. 1 is to ensure the accessibility to the tide embankment and the efficiency of administration by allowing the tide embankment to be reverted to the father-gun, and that the tide embankment belongs to the Kim Jong-si. Even based on the evidence submitted by the Plaintiff, it is difficult to recognize that only the Gunsan City can manage the infrastructure of the tide embankment efficiently.

⑤ Although the Gunsan-si jurisdiction (Simsan-si address 1 and address 2 omitted) lies between the embankments 1 and 2, it seems that the Gunsan-si jurisdiction is not particularly responsible for administrative management for the convenience of the residents of the Gunsan-si, even though the Gunsan-si, which is the jurisdiction of the Simsan-si. In particular, while constructing a tide embankment, the Gunsan-si installed a drainage lock in the Gunsan-si ( Address 1 omitted), the management authority is the Korea Rural Community Corporation, not the Gunsan-si, and the Gun Rural Community Corporation is the Korea Rural Community Corporation and the Gun Community Corporation has a relationship between the new reclaimed land and the new reclaimed land while reclaiming the island. In this situation, there is no reasonable means to determine the Gunsan-si jurisdiction to the adjacent tide that was newly

6) The Saemangeum tideland was a large scale of 8% of the area of the nationwide tideland, and the fishermen in the Gun, Si, Kim Jong-si, and So it is difficult to view that the damage from the loss of public waters due to reclamation was limited to the Gun, Gun, and Gun. Rather, in the case of Kim Jeju-si, the damage from the loss of public waters due to the reclamation was caused by the embankment to completely prevent fishermen from using the tideland and the outflow of the sea by the embankment and the damage was high.

3) The Plaintiff’s assertion on this part is without merit.

4. Conclusion

The plaintiff's claim is dismissed without merit, and the costs of lawsuit shall be borne by the plaintiff, including the part resulting from the participation in the assistance. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] Drawings: Omitted

[Attachment 2] Drawings: Omitted

Justices Lee Dong-gu (Presiding Justice)