Plaintiff (Attorney Choi Han-soo, Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 3 others (Law Firm Jeong, Attorney Cho Sung-sung, Counsel for defendant-appellee)

Suwon District Court Decision 2009Guhap2073 Decided February 1, 2011

November 16, 2011

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of indemnity amounting to KRW 49,306,90 against the Plaintiff on June 30, 2009 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. cite the judgment of the first instance;

(1) The court's reasoning for the use of the instant case is as follows: (a) whether the instant disposition was legitimate on January 2, 200; (b) whether the instant disposition is legitimate; (c) whether the Republic of Korea is a legitimate owner of the instant real estate (the second and third sides of the claim that the Republic of Korea is not a legitimate owner of the instant real estate); (b) not later than the second and third third floor building "B" on the ground that the second and third floor building "B" (hereinafter "the instant building") is placed in the second floor building "B" on the ground that "B"; and (c) other than the alteration of "related Acts and subordinate statutes" into "related Acts and subordinate statutes" at the end of the judgment, the reasons for the first instance judgment is as follows. Article 8 (2) of the

2. A new part.

(2) As to the assertion that the calculation of indemnity under the Public Waters Management Act is unlawful

According to Article 5(1)1 of the former Public Waters Management Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter the same), a person who intends to construct, rebuild, extend, alter, or remove a wharf, breakwater, bridge, floodgate, building or other structure in a public waters (hereinafter “new construction, etc.”) shall obtain permission from the management agency for occupancy and use, and according to Article 10(1) of the former Enforcement Decree of the Public Waters Management Act, a person who occupies or uses public waters without permission for occupancy and use shall collect indemnity equivalent to 120/100 of the occupancy and use fees as prescribed by Presidential Decree. According to Article 13(1)1 of the former Enforcement Decree of the Public Waters Management Act (amended by Presidential Decree No. 2249, Oct. 14, 2010; hereinafter the same shall apply), and Article 10(1)1 of the former Enforcement Rule of the Public Waters Management Act (amended by Presidential Decree No. 22410, Oct. 14, 2010).

The Defendant: (a) deemed that the instant building newly built in the key part of the instant case constituted “new construction of a building, etc.” among the forms of occupation and use of public waters; and (b) calculated and imposed indemnity based on the price of neighboring land. However, rather than occupying and using public waters, the Plaintiff merely occupies and uses only the key part of the instant case, which is a ditch site regardless of public waters, as a general land, as the instant building site; and (c) this does not constitute a form of occupation and use under the Public Waters Management Act. The reasons for deeming that

① Article 2 subparag. 1(b) of the former Public Waters Management Act defines public waters as “state-owned waters, such as rivers, lakes, marshes, ditches, or other waters or waterways used for public purposes.” The site for rivers, lakes, ditches itself is only applicable to land, not water surface or water surface.

② Article 2 subparag. 5 of the former Public Waters Management Act defines a building as “a building constructed without developing land in the public waters so that seawater can flow off (this provision is newly established upon amendment by Act No. 8819, Dec. 27, 2007).” The instant building is entirely contacted with a ditch site, and it does not have to be installed so that water flows out.

(3) According to Article 5(2) of the former Public Waters Management Act, only a building prescribed by the Presidential Decree should be permitted for new construction of a building. According to Article 5(1) of the former Enforcement Decree of the Public Waters Management Act, this refers to a certain building among “a building installed under public waters or underground or floating on public waters.”

④ According to Article 3 subparag. 1 of the former Public Waters Management Act, the application of the Public Waters Management Act is excluded in the public waters to which the Act on Rivers is applied or applicable mutatis mutandis. Article 33(1)1 of the River Act explicitly states “the occupation and use of land” as one of the types of acts subject to the permission for occupation and use of rivers, and Article 37(4) of the River Act and Article 42(1) [Attachment Table 3] subparag. 2 of the Enforcement Decree of the River Act calculates the applicable rate based on the “price of the relevant land”.

⑤ The purport of the Public Waters Management Decree, which requires the calculation of occupancy and use fees based on the “price of adjoining land” for new construction of a building, is that the act, such as new construction of a building, does not include cases where only the relevant ditch site is occupied and used irrespective of the public waters. In cases of occupying and using public waters themselves, it may be justified to set the “price of the relevant land” based on the “price of adjoining land” that serves as the basis for calculating occupancy and use fees, but it may not be permitted to set the occupancy and use fees based on the price of adjoining land that is not the relevant land in the event of occupying and using the site of a ditch, in light of equal rights under the Constitution or the provisions

(6) Where a ditch site is occupied or used as a building site, such as a general land regardless of public waters, it shall not fall under any of the types of occupancy or use prescribed in Article 5 (1) of the former Public Waters Management Act.

The Plaintiff’s act of occupying and using only the instant part, which is a ditch site regardless of public waters, as the general land, as the site for the instant building does not fall under the form of occupation and use under each subparagraph of Article 5(1) of the former Public Waters Management Act. The instant disposition that the Defendant deemed to be subject to the Public Waters Management Act is unlawful.

(3) Determination as to the Defendant’s assertion of applying the State Property Act

The defendant asserts that even if the compensation is calculated based on the "price of the pertinent land" by applying the State Property Act, not the Public Waters Management Act, to the Plaintiff's unauthorized occupation and use, since the main issue at the time of the construction of the instant building is already the same as the neighboring land (site) and the use situation, there is no difference from the amount of indemnity calculated based on the "price of adjoining land".

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or alter other grounds to the extent that the original grounds for disposition are deemed identical to the original grounds for disposition. The same factual basis refers to the same facts based on a social factual basis, based on which the grounds for disposition are based before evaluating the grounds for disposition by law. In cases where the disposition agency merely adds or amends statutes only, or explicitly expresses the original grounds for disposition, to the extent that it does not change the specific facts specified at the time of disposition, it cannot be deemed that a new grounds for disposition are added or modified (see Supreme Court Decision 2006Du4899, Feb. 8, 2007, etc.).

The instant disposition imposes indemnity on the Plaintiff’s unauthorized occupation and use of the part relating to the instant disposition, which is a state-owned property, by owning a building newly constructed on a ditch. The Defendant did not add only the statutes governing the imposition of indemnity to the same factual basis under the Public Waters Management Act, but did not add any new grounds for disposition. Therefore, there is no problem that the Defendant changed the grounds for disposition itself.

According to Article 51(1) of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same), an indemnity amounting to 120/100 of the rent or rent for the relevant State property shall be collected from a person who uses or benefits from the relevant State property without permission, as prescribed by Presidential Decree. According to Article 26(1) of the former Enforcement Decree of the State Property Act (wholly amended by Presidential Decree No. 21641, Jul. 27, 2009; hereinafter the same shall apply), annual rent shall be calculated by multiplying the value of each property by a specified rate (25/1,000 through 50/1,000) for each use or benefit-making. According to Article 51(2) of the Public Notice of Values and Appraisal of Real Estate Act, the value of the property on land shall be the publicly announced individual land price of the relevant land under the Public Notice of Values and Appraisal of Real Estate Act.

In addition, the officially assessed individual land price as to the key issues of this case is unclear, and the Public Waters Management Act and the State Property Act differ from the applicable rates. There is no evidence to acknowledge that the indemnity calculated under the State Property Act is equal to or higher than the indemnity calculated under the Public Waters Management Act.

(4) The instant disposition is unlawful.

3. Conclusion

The judgment of the first instance shall be revoked. The disposition of this case shall be revoked.

[Attachment Form 5]

Judges Kim Jong-dae (Presiding Judge)