[1] Whether additional clauses may be attached to permission to occupy and use the river site (affirmative)

[2] The case holding that in a case where the additional clauses "in the event that the period of occupation and use expires or the period of occupation and use is abolished, it shall be restored to its original state immediately," while granting permission for occupation and use of a river site, the meaning of the above additional clauses is deemed as a condition to waive the right to claim compensation for reclamation expenses at the expiration

[1] Whether to grant permission to occupy and use a river site belongs to the discretion of the management agency, and it belongs to the discretion of the relevant administrative agency, and the proviso of Article 33 of the former River Act (amended by Act No. 7101 of Jan. 20, 2004) provides that permission to occupy and use a river requires additional clauses necessary to prevent pollution caused by river contamination and other harm to public health and sanitation. Thus, it is obvious that permission to occupy and use a river site may be seen as a face of the nature of permission to occupy and use the river site, or it may be seen as a supplementary provision or a supplementary clauses.

[2] The case holding that in a case where the additional clauses are attached to the "where the occupancy period expires or the occupancy and use period is abolished, it shall be restored to its original state immediately," while granting permission to occupy and use the river site, the meaning of the above additional clauses is deemed to be the condition that the right to claim the reclamation cost compensation is waived at the expiration of the occupancy

[1] Article 33 of the former River Act (amended by Act No. 7101 of Jan. 20, 2004) / [2] Articles 33 and 73 of the former River Act (amended by Act No. 7101 of Jan. 20, 2004) (refer to Article 48 of the current Act)

[1] Supreme Court Decision 90Nu8688 delivered on October 11, 1991 (Gong1991, 2737)

Plaintiff 1 and one other (Law Firm Chungcheong, Attorneys Gyeong-chul et al., Counsel for the plaintiff-appellant)

Plaintiff 3 (Law Firm Woo, Attorneys Im Jong-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2007Nu1943, 2007Nu1950 decided Oct. 23, 2007 (Consolidated) 2007Nu1967 decided Oct. 23, 2007

The Defendant’s appeal against Plaintiff 1 and 2 is dismissed. Of the judgment of the court below, the part against the Defendant regarding the claim for reimbursement of the Plaintiff’s reclamation expenses by Plaintiff 3 is reversed, and that part of the case is remanded to the Seoul High Court. All appeals by Plaintiffs 1 and 2 are dismissed. The costs of appeal against the dismissal of the appeal and dismissal of the appeal

We examine the grounds of appeal.

1. Judgment on the defendant's appeal against the plaintiff 1 and 2

According to the records, only the plaintiffs filed an appeal against the judgment of the court of first instance, and the defendant did not file an appeal, and all appeals filed by plaintiffs 1 and 2 were dismissed. Thus, the defendant is deemed to have no benefit to file an appeal against the plaintiff 1 and 2, and the appeal by this case against the plaintiff 1 and 2 is unlawful.

2. The appeal by the plaintiff 1 and 2 and the appeal by the defendant against the plaintiff 3

A. Whether to grant permission to occupy and use a river site belongs to the discretion of the management agency, and even if there is no legal basis in discretionary action, whether to attach additional clauses shall belong to the discretion of the management agency concerned. In addition, the proviso of Article 33 of the former River Act (amended by Act No. 7101, Jan. 20, 2004; hereinafter the same) stipulates that permission to occupy and use a river requires additional clauses necessary to prevent pollution caused by river pollution and other harm to public health and sanitation. Thus, it is evident that permission to occupy and use a river site may be seen as a face of the nature of permission to occupy and use a river site or attach additional clauses to legal regulations (see Supreme Court Decision 90Nu8688, Oct. 11, 191, etc.).

B. Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its reasoning after compiling the selected evidence, and determined that the plaintiff 1 and 2 could not claim for reimbursement of reclamation expenses due to the completion of the permission of the occupation and use of the case on July 7, 2003 by the head of Seoul Regional Construction and Management Administration pursuant to Article 32 (1) of the former River Act (hereinafter "the notice of this case") and that the permission of the occupation and use of a high-sea market is completed due to the completion of the permission of occupation and use of the case on July 7, 2003 by the head of Seoul Regional Construction and Management Administration. Accordingly, the plaintiffs 1 and 2 cannot claim for reimbursement of reclamation expenses due to the completion of the permission of occupation and use of the case on July 3, 200, since each of the permission of occupation and use of the plaintiffs 1 and 2 is not expressly stipulated in Article 11 of the Addenda of the permission of occupation and use of the case on July 3.

However, we cannot accept the above determination by the court below for the following reasons.

C. According to the evidence and records employed by the court below, the plaintiffs obtained permission to occupy and use each river site in this case from the high-sea market from January 1, 199 to December 31, 2003. With respect to each permission to occupy and use each river site in this case, Article 10 of the above Sub-section provides that "if the occupancy and use period is terminated or terminated, all the plaintiffs shall immediately restore it to the original state and submit the purport thereof to the competent Mayor for inspection." Article 11 of the Sub-Section 11 of the above Sub-Section 1 and 2 of the above Sub-Section 3 of the above Sub-Section 3 of the above Sub-Section 11 provides that "the permitted administrative agency may not exercise its right to permit if it permits any other person to occupy and use the river site in this case for public use or pubic use, or if necessary for other person, it cannot exercise its right to permit each of the above sites in this case." The plaintiffs 3 of the above sub-section 2 of the above sub-section 101 of the above river site in this case.

However, examining the provisions of Article 32 (1) of the former River Act, there is no explicit ground to determine that "the permission to occupy and use a high-sea market shall be obtained by the head of the Seoul Regional Construction and Management Office from the person holding the permission to occupy and use a river," but there is no other evidence to deem that the notification of this case constitutes "when the permission-granting authority grants permission to occupy and use a third party" under Article 11 of the Addenda of the permission to occupy and use the river site of this case. In light of the above facts, the plaintiffs occupied each river site of this case by the period of occupation and use specified in each permission to occupy and use the river of this case ( December 31, 2003) and then the renewal of the permission to use and use the river site of this case is terminated and no longer exists.

Therefore, the judgment of the court below that held that the ground falling under Article 11 of the Addenda to each permission for occupation and use of rivers of this case (the case where the permission-granting authority has granted permission to another person) has occurred due to the notification of this case, is erroneous in the misapprehension of legal principles as to the public announcement of the river and the execution plan for river maintenance, and the defendant'

D. Meanwhile, in light of the legal principles as seen earlier and the contents of Article 73(1) and (3) of the former River Act that a person who occupies and uses a river with permission for occupation and use of a river shall restore the river to its original state when the permission becomes void or when the occupation and use of the river is discontinued, and the management agency may exempt the duty to restore the river, and the above contents of Article 73(1) and (3) of the former River Act that if the duty to restore is exempted, nationalization of the relevant structure or other things may be made without compensation, as seen above, and the above circumstances and the records of this case, the meaning of “the expiration of the occupancy period or the occupation and use shall be restored to its original state immediately when the plaintiffs cancel the occupancy and use period” as stipulated in Article 10 of the Addenda of each permission for occupation and use of a river of this case should be interpreted as the permission for occupation and use of each of this case on the condition that the plaintiffs waive their right to compensation for development expenses at the expiration of the occupancy and use period for each of the river sites of this case.

Therefore, we cannot accept the Plaintiff 1 and 2’s ground of appeal to the effect that the duty to restore to the original state as stipulated in Articles 10 and 11 of the Addenda of each permission for occupation and use of rivers of this case cannot be interpreted as a waiver of the right to claim compensation for reclamation expenses, or that the above appurtenant provisions are invalid

E. Therefore, the plaintiffs already renounced the right to claim compensation for each of the instant reclamation costs under Article 10 of the Addenda to each of the instant permission for occupation and use of rivers. Therefore, all of the plaintiffs' claims for compensation for each of the reclamation costs of this case cannot be accepted.

However, since the judgment of the court below dismissed the plaintiffs 1 and 2's claim for compensation for development costs, it is reasonable to determine this part of the judgment of the court below as a result of its conclusion, which affected the conclusion of the judgment of the court below as to the above plaintiffs, and ultimately, the above plaintiffs' ground of appeal cannot be accepted.

On the other hand, since the judgment of the court below partially accepted the plaintiff 3's claim for reimbursement of the reclamation expenses, the above judgment below's error in the judgment of the court below affected the conclusion of the judgment, and the defendant's ground of appeal pointing this out has merit.

3. Therefore, the Defendant’s appeal against Plaintiff 1 and 2 is dismissed as it is unlawful. It is so decided as per Disposition by the assent of all participating Justices on the bench, without further review as to the Defendant’s remaining grounds of appeal against Plaintiff 3, and without further review, the part of the lower judgment against the Defendant regarding the part regarding the claim for reimbursement of the reclamation cost by Plaintiff 3, which was reversed, and remanded to the lower court for further proceedings consistent with this Opinion. All appeals by Plaintiffs 1 and 2 are dismissed, and the costs of appeal against the rejection of appeal and the dismissal of appeal are assessed against each party.

Justices Yang Sung-tae (Presiding Justice)