(영문) 대전지방법원 2016.10.27. 선고 2016구합100781 판결

A. The Plaintiff (the Korea Electric Power Corporation was established in installments on April 2, 2001; hereinafter referred to as the “Plaintiff”) is a company that constructs and operates a thermal power plant (hereinafter referred to as the “electric power plant of this case”) located on the face of the Jinjin-si in Jinjin-si.

B. From around 1994, the Plaintiff performed the “construction work for the construction of the instant power plant” in the 1994, and obtained authorization for the completion of the reclamation work for public waters around June 30, 200.

C. The land of this case (hereinafter collectively referred to as “the land of this case”) is a bank and a road located adjacent to the coast of the instant power plant, located on the shore of this case (see attached Table 1). The land of this case is a bank and a road located on the shore of this case, which is located adjacent to the instant power plant, in addition to the Dogdog-ro 971, 14,474.9m2, 15,343m2, 972, 973m2, 973m2, 973m2, 259m2,303m2, 98m2, 985m2,303

D. Korea completed registration of ownership preservation on the instant land on February 13, 2001.

E. On December 17, 2014, the Defendant issued a disposition imposing indemnity of KRW 442,839,510 on the ground that “the Plaintiff occupied the instant land, which is State property, without permission, from December 18, 2009 to December 17, 2014” on the ground that “the Plaintiff occupied the instant land, which is State property, without permission,” with the authority delegated by the State.

F. On March 12, 2015, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission seeking revocation of the disposition imposing indemnity as of December 17, 2014, and the Central Administrative Appeals Commission rendered a ruling revoking the disposition imposing indemnity on the ground that the Plaintiff’s act of occupying the instant land without permission on October 13, 2015, but the Central Administrative Appeals Commission is recognized as having committed an unlawful act by the Plaintiff, etc. in calculating the indemnity, on the ground that the Defendant paid the royalty and did not reduce the amount equivalent to the area lawfully used (Case No. 2015-04686).

G. Accordingly, on November 19, 2015, the Defendant issued a disposition imposing indemnity amounting to KRW 440,735,340 (hereinafter “instant disposition”) on the ground that “the Plaintiff occupied the instant land, which is State property, without permission, from December 18, 2009 to December 17, 2014” (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy Facts, Gap evidence 1 through 4, 6, 9, 10 evidence, Eul evidence 1 and 5 evidence 1 and 5 (including branch numbers; hereinafter the same shall apply), the result of the verification by this court, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Of the instant land, the bank is aimed at protecting the site of the instant power plant from the sea, and the road is only for the instant power plant. In other words, the instant land is reverted to the State due to erroneous administration, even though the land was buried and created solely for the construction and operation of the instant power plant, and not for the public nature, and is not attributed to the State. Therefore, the registration of preservation of ownership in the name of the Republic of Korea as to the instant land is null and void, and the instant disposition based on the premise that the instant land is State-owned property.

2) The Plaintiff controls the entry of the general public into the instant power plant, and as a result, controls the entry of the general public into the instant land. However, this is only necessary for the guard and management of the instant power plant, which is a key national establishment, and does not control the entry with the intent to occupy the instant land, and thus, the Plaintiff cannot be deemed to possess the instant land. However, although the Plaintiff occupied part of the instant land for the purpose of the construction and operation of a watchout, it cannot be deemed that the Plaintiff occupied the instant land. However, the Plaintiff obtained the permission to use State property from the Defendant. Ultimately, even if the Plaintiff did not occupy the remaining part of the instant land except for the part for which the Plaintiff obtained the permission to use as above, the instant disposition that the Plaintiff imposed indemnity

3) Even if the Plaintiff possessed all of the instant land, the instant land is essential for the construction and operation of the instant power plant. In full view of the following: (a) the Plaintiff used the instant land as scheduled at the time of the reclamation plan for the instant land or the construction plan for the instant power plant; (b) the Defendant was also expected to possess the Plaintiff; and (c) the Plaintiff was in a legal position to justify the Plaintiff’s possession of the instant land for about 15 years prior to the instant disposition; and (b) the Republic of Korea acquired the limitation or share ownership to allow the Plaintiff’s possession of the instant land. Therefore, the instant disposition is unlawful, since the Plaintiff did not occupy the instant land without permission, the Plaintiff was also unlawful.

4) On or after June 2000, the Defendant demanded the Plaintiff to use the pertinent land or did not impose indemnity for about 15 years after the land was reverted to the State. Since there was a justifiable reason to believe that the Defendant did not impose indemnity for the possession of the instant land, the Defendant’s authority to take the instant disposition was invalidated, and thus, the instant disposition was unlawful.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

1) On July 25, 200, the Plaintiff sent a public notice to the Defendant stating that “Around July 25, 2000, the Plaintiff would return the Defendant’s opinion to the State on the structure (No. 1), water ben, and coastal roads) presented under the authorization of completion,” and the instant land is part of the above structure.

2) Accordingly, the Defendant sent the following purport to the Plaintiff around July 27, 2000.

The land, etc. of this case does not require separate procedures for reversion to the State and consultation with the property already reverted to the State (acquisition of ownership) on June 30, 2000, on which the completion authorization of reclamation of public waters was granted under the Public Waters Reclamation Act. It is necessary to send DNA-related documents to take necessary measures for preservation of ownership of the land, etc. of this case. In addition, since the land, etc. of this case is already reverted to the State, if it is intended to use the land, etc. of this case after the date of completion authorization, it shall obtain

3) The instant land is adjacent to the coast of the instant power plant, and must pass through the instant power plant in order to enter the instant land into and depart from the instant power plant.

4) The Plaintiff, as the owner and manager of the instant power plant, installs iron books, etc. on the boundary of the instant power plant, and controls access by verifying the identity of the person who entered the entrance at the entrance.

5) Meanwhile, the Plaintiff installed a watch on the instant land, and obtained permission to use State property from the Defendant as follows.

A person shall be appointed.

6) The construction companies, including the Hanjin Heavy Industries, obtained permission to use the pertinent land as state property from the Defendant as follows.

A person shall be appointed.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 4, 6 through 9, Eul evidence 1 and 2, and the purport of the whole pleadings

D. Determination

1) As to whether state property of the instant land was state property

A) Article 6(1)1 of the Act on the Management and Reclamation of Public Waters (hereinafter “Public Waters Act”) provides that “If a reclamation licensee has obtained a completion inspection certificate, the State shall acquire the ownership of reclaimed land necessary for official or public use as prescribed by the Presidential Decree.” Article 51(1)1 of the Enforcement Decree of the Public Waters Act provides that “Land necessary for official or public use as prescribed by the Presidential Decree” means a road, bank protection, inner wall, water tank, breakwater, breakwater, breakwater, drainage facility, park, or reclaimed land necessary for official or public use as prescribed by the Presidential Decree.”

Therefore, the Republic of Korea shall acquire the ownership of the instant land corresponding to the road and lake pursuant to the laws and regulations at the time of completion of the Plaintiff’s construction work on the surface of the relevant land.

B) As seen earlier, the Plaintiff asserted to the effect that the instant land does not constitute State-owned property because it is not a reclaimed land required for official or public use. However, in light of the language and text of the above public waters law, it is reasonable to deem that ownership belongs to the State regardless of whether it falls under “road or bank site necessary for official or public use” in accordance with other Acts and subordinate statutes. The Plaintiff’s assertion alone does not interfere with the aforementioned judgment (On the other hand, according to the overall purport of the facts and arguments as seen earlier, the Plaintiff knew that the instant land ownership belongs to the Republic of Korea at the time of completion of the public waters reclamation project of the Jinified Power, and on this premise, submitted relevant documents to the Defendant).

C) Therefore, the Plaintiff’s assertion on this part is without merit.

2) As to whether the Plaintiff occupied the land of this case

A) Relevant legal principles

The State Property Act provides for the imposition of indemnity against unauthorized occupant of state property and does not provide for the concept of possession separately, and there is no special reason to regard the concept of possession concerning the imposition of indemnity differently from the concept of private possession.

On the other hand, possession refers to the objective relationship that appears to be a factual control of a person under the social norms, and in order to have a de facto control, it does not necessarily mean only physical and practical control over an object, but should be judged in conformity with social norms by taking into account the time, space and principal relation with the object, possibility of exclusion from control of another person (see, e.g., Supreme Court Decision 2009Da73011, Jan. 28, 2010).

B) Determination

Comprehensively taking account of the purport of the entire pleadings, the Plaintiff installed a watch on the ground of the instant land, and used part of the instant land as a road, and controlled access to the instant power plant to the instant land by thoroughly controlling the entry of the outside person, etc. to the entire instant land, thereby under the exclusive control or management of the instant land. Thus, the Plaintiff has a factual control over the entire instant land under social norms.

Therefore, regardless of whether the Plaintiff intended to use the entire land of this case, the Plaintiff occupied the entire land of this case, and therefore, this part of the Plaintiff’s assertion is without merit.

3) As to the plaintiff's unauthorized occupancy

In light of the following facts and the purport of oral argument as seen earlier, ① the Plaintiff occupied the instant land without permission for use or loan agreement; ② the Plaintiff is responsible for guard, security, and protection pursuant to the United Defense Act; and solely on such circumstance, the Plaintiff cannot be deemed to possess the instant land; ③ Even if the Plaintiff was planned to occupy the instant land from the construction time of the instant power plant, or the Plaintiff was necessarily required to occupy the instant land for the construction, operation, etc. of the instant power plant, the Plaintiff cannot be deemed to have immediately acknowledged the Plaintiff as the source of right to possess the instant land solely on such circumstance; ④ the Defendant could not be deemed to have immediately acknowledged the Plaintiff as the source of right to possess the instant land; ④ the Plaintiff could not be deemed to have been aware of the need to possess the instant land from February 13, 200, which was completed on June 30, 200, or from February 13, 2001 to the disposal time of the instant land.

Therefore, since the plaintiff occupied the land of this case without permission, the plaintiff's assertion on this part also exists.

There is no reason.

4) As to the defendant's invalidation of the disposition of this case

Even if an indemnity is imposed upon a person who occupies or uses State property without permission by the State or the State after he/she has been entrusted with the affairs concerning the administration or disposal of State property for a long time, the imposition of indemnity would be contrary to procedural justice and trust principles, or the possessor’s right to use or profit from the State property cannot be recognized (see, e.g., Supreme Court Decision 2005Du11463, May 15, 2008). Although the Defendant did not impose indemnity on the Plaintiff for the land from February 13, 2001, which completed the registration of ownership preservation of the land of this case on or around June 30, 200, or from February 13, 2001, which completed the registration of ownership preservation of the land of this case, until the time of the disposition of this case, the Defendant’s right to impose indemnity was invalidated on the ground that it is so, or that the disposition of this case is not permissible in light of the good faith principle, this part of the Plaintiff’s assertion

3. Conclusion

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