2012Guhap5191 Revocation of revocation of non-permission for occupancy or use of public waters

Korea hydroelectric Power Co., Ltd.

Representative Director Kim Kim Kim

Law Firm A, et al.

[Defendant-Appellee]

Head of Busan Metropolitan City Gun

Attorney B, Counsel for the defendant-appellant

May 9, 2013

June 13, 2013

1. On August 13, 2012, the Defendant’s rejection of the change in the occupation and use of public waters against the Plaintiff is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The Plaintiff and the captain-gun-gun Committee for Countermeasures against Damage to Fisheries (hereinafter referred to as the “Sari Headquarters”) operate the High Atomic Energy Headquarters (hereinafter referred to as the “Sari Headquarters”) at the head of the Busan-gun, the head of the Dong-gun, Busan-gun, and the head of the Seori Headquarters has six nuclear power plant units (the 1 to 4 nuclear power plant units, the 1 to 2 nuclear power plant units, the 1 to 4 nuclear power plant units, the 1 to 2th hereinafter referred to as the “Sari Nuclear Power Plant”).

2) On June 16, 2005, the captain-gun Committee on Countermeasures against Fishery Damage in the Navy (hereinafter referred to as the " captain-Gun's subrogation") is an organization composed of fishermen in the captain-Gun to demand compensation, etc. for damage caused by the construction and operation of the Ririwon. 3) On June 16, 2005, the Plaintiff entered into an agreement with the captain-Gun on the implementation plan of the requirements of fishermen for the operation of the Ririwon. The main contents of the agreement and the agreement are as follows:

4) On December 28, 2005, the Plaintiff entered into an agreement on measures to implement the requirements of fishermen due to the operation and construction and operation of the period of 1 through 4, 2005, including investigation of fishery damage and compensation, etc. due to the construction and operation of the period of 1 through 4, 2000, which is to be newly established in addition to the above agreement with the captain captain, "the agreement on December 28, 2005," and "the agreement on measures to implement the projects of developing fishery infrastructure, such as freezing and freezing storage," and the main contents of the agreement are as follows:

5) The plaintiff on December 22, 2008 between the captain's captain's captain's Captain and the captain's captain's captain's captain's captain's captain's captain's captain's request

12. On December 22, 28, 2008, an agreement to amend a fishery infrastructure development project (hereinafter referred to as a "self-agreement on December 22, 2008") with the content that the subsidies of the Convention on Assistance to the Development of Fishery Infrastructure increases from 10 billion won to 11 billion won. The main contents of the agreement are as follows:

On December 28, 2005, the agreement on the amendment of the fishery infrastructure development project (Along-gu) captain and the Gori Headquarters agreed to amend the agreement as follows: i.e., the agreement on the support for the development project for fishery infrastructure, such as freezing and freezing storage ( December 28, 2005), and the agreement on the support for the development project for the fishery infrastructure, such as freezing and freezing storage (the agreement on December 28, 2005), : ii) additional support for the development project for the fishery infrastructure; i.e., the implementation of the agreement on December 2, 200, i.e., securing the legal representative; i., the signing of the agreement on the construction and operation of 1 through 4, 1 through 4, 2000, i.e., the agreement on the permission of the right holder, such as the occupation and use and use of public waters, and 20, i.e., the research institute and the plaintiff actively cooperate with the research institute on January 6, 206, 206.

11. Until April 2, 2008, the plaintiff and the captain captain captain, following expert discussions and consultations, entered into an agreement between the captain and the captain on the investigation of the damage to fisheries in the region of the captain due to the operation of the four aircraft units in the Mari-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri

7) On August 14, 2009, the Plaintiff entered into a contract for investigation of fishery damage in the area of the captain, one of the two research institutions recommended by subrogation of the captain on December 2, 2008 (hereinafter referred to as "former South-North Korean Research Institute"), and the former South-North Korean Research Institute submitted to the Plaintiff on August 8, 201, a final report on the results of the investigation pursuant to the said contract and applied for the inspection of the said final report.

8) On August 10, 201, the Plaintiff returned the said final report submitted by the Jeonnam-do Research Institute on the ground that the said final report did not meet the requirements stipulated in the said contract. The Plaintiff submitted a final report that was finally revised on April 30, 2012 to the Plaintiff on the ground that the said final report violated the general conditions and special conditions under the service contract. On May 14, 2012, the Plaintiff notified the research institute of the fact that the said final report was rejected the completion inspection of the said final report.

B. On April 17, 2009, the Plaintiff obtained permission to occupy and use public waters and to use public waters (the period of permission: from April 20, 2009 to April 19, 2012; hereinafter referred to as “the first permission of this case”) on the public waters of the head of Busan District District in order to take over sea water for cooling in the course of a trial operation and operation after the construction of the 1, 2nd unit of the 1, and 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the 2nd unit of the Gu

2) On February 20, 2012, which was around the expiration of the initial permission period, the Plaintiff filed an application with the Defendant for permission to occupy and use public waters with the same permission period and to change the area, purpose, etc. of the public waters used for occupancy and use from April 20, 2012 to April 19, 2042. For this, the Defendant filed an application for permission to change the occupancy and use of public waters with the purport of extending the period of permission from April 20, 2012 to April 19, 2012 with the captain captain captain’s captain’s subrogation on April 19, 2012 for the investigation, compensation, and performance under the initial agreement, and thus, it is inevitable

5. The period of permission is set from April 20, 2012 to April 20, 2012, on the ground that both parties agree as soon as possible, on the ground that the period of permission is 'the time to apply for the subsequent change of permission'.

3) On May 14, 2012, the Plaintiff filed an application for permission to change the occupation and use of public waters to 20. The Plaintiff did not submit a request for permission to change the occupation and use of public waters to the Defendant on May 21, 2012 for the same period as the occupation and use of the public waters for 20 years from May 21, 2012 to May 20, 204. However, the Defendant again submitted an application for permission to change the occupation and use of public waters to 10 days from May 15, 2012 to 20 days from May 21, 2017 to 200 to 20 days from May 21, 2012, on the ground that the Plaintiff did not submit a request for permission to change the occupation and use of public waters to 20 days from May 21, 201 to 1.

[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 27 (including each number; hereinafter the same shall apply), evidence 30 to 37-2, Eul evidence 1-2 to 8, the purport of the whole pleadings

2. Whether the non-permission disposition in this case is legitimate

A. The Plaintiff’s assertion 1) Fishermen belonging to the captain of the vessel are not entitled to consent in the instant application, and even if they are entitled to consent in the instant application, it is unlawful for the Defendant to render the instant non-permission disposition on the grounds that the Defendant did not submit a written agreement with the captain captain and filed a civil petition.

2) As a result of the instant non-permission disposition, the Plaintiff’s failure to suspend the development of the period of subparagraphs 1 and 2 prior to the filing date of the report, there is a serious difficulty in supplying electricity. In light of the fact that the Defendant may recommend the captain’s captain’s subrogation to reach an agreement by attaching additional clauses, such as “the Plaintiff shall make an active effort to reach an agreement with fishermen pursuant to Article 8(7) of the Public Waters Management and Reclamation Act”, etc., the instant non-permission disposition is illegal as a disposition that deviates from or abused the Defendant’s discretionary power, etc.) on December 1, 201, the Defendant set the permission period of about 13 years for the period of about 3 and 4 years prior to the filing date of the report, and the head of Ulsan-gu Seoul Metropolitan City located in the neighboring area with the permission period of about 15 years prior to the filing date of the report on October 4, 2011, each public waters occupation and use of each public water, etc. on the ground of lack of the right holder’s consent.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

The defendant stated in the disposition of non-permission of this case on the ground that "the plaintiff and the captain related to the investigation of fishery damage and compensation are not submitted a detailed agreement with each other, and the continuous civil petition from the captain's subrogation (request for rejection of permission to change the occupation and use of public waters)". In light of the purport of the whole pleadings, the defendant cited "the lack of consent from the fishermen belonging to the captain, who are entitled to damage due to permission to occupy and use public waters for the main reason of the disposition of non-permission of this case," and therefore, it is necessary to examine the language stated in the above disposition by selecting "the lack of consent from the fishermen belonging to the captain subrogation."

1) Determination as to whether fishermen belonging to captain subrogation are entitled to the occupation and use of public waters on the instant application

Pursuant to Article 8(1) of the former Public Waters Management and Reclamation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the “former Public Waters Management Act”), any person who intends to enter or use water from public waters or discharge water from public waters shall obtain permission to occupy or use public waters from the management agency of public waters. According to Article 12(1) of the same Act, the management agency of public waters may grant permission only where a person who has a right likely to be damaged due to permission to occupy or use the public waters (hereinafter referred to as “person entitled to occupancy or use the public waters”) consents to the occupancy or use of the public waters. Article 12(1) of the former Enforcement Decree of the Public Waters Management and Reclamation Act (hereinafter referred to as the “Enforcement Decree of the Public Waters Management Act”) provides that any person who obtains permission to occupy or use the adjacent public waters pursuant to Article 28 of the former Public Waters Management Act or any person who obtains permission to use the fishery business from public waters pursuant to Article 12(1) of the former Enforcement Decree of the Public Waters Management Act.

The plaintiff asserts that the takeover of the sea water, which is the purpose of the plaintiff's application of this case, does not cause any damage to the fishermen belonging to the captain's subrogation. Thus, they do not need the consent of the fishermen belonging to the captain's subrogation in granting permission of the application of this case. However, in general, since the nuclear power plant operation requires considerable amount of damage as a cooling water, and the acceptance of such sea water is not likely to disregard the impact on the marine ecosystem, ② the sea water taken over and used cannot be again discharged into the sea again, so it cannot be determined separately. ③ although the acceptance of the sea water before the report of this case was made in the captain-gun, it is divided into the acceptance and the multiple area in the administrative district of Ulsan-gun, the neighboring area, but it is not possible to exclude the possibility that air conditioning water discharged into the area of the captain's river due to continuous characteristics, it is reasonable to view that the plaintiff's captain's subrogation and the captain's right to use the public waters can be seen to fall under the above premise that the plaintiff's captain and the captain's right to use permit of the above.

Therefore, this part of the Plaintiff’s assertion is without merit.

2) The plaintiff's assertion as to whether the right holder related to the occupancy and use of public waters necessary for the permission of the application of this case consents

The plaintiff asserts that the plaintiff's captain's captain's captain's consent should be deemed to have consented to the application of this case, since the agreement of December 28, 2005 and December 22, 2008 entered into by the plaintiff with the captain's captain's captain's captain's captain's captain's captain's captain's owner's consent to the occupancy and use of public waters.

B) Defendant’s assertion

On the other hand, the defendant should not interpret the above contents as "the consent," but cooperate with the consent." Even if the conclusion of the above agreement alone is deemed to have consented, since the plaintiff did not fulfill his obligation to compensate for damages as stipulated in each of the above agreements until the seven years have passed since the conclusion of the above agreement, the above consent cannot be deemed valid. According to the Public Waters Management Act, even in the case of permission for occupancy and use of public waters, the consent of the owner of the right to use and use of public waters is required even in the case of permission for occupancy and use of public waters, so the application of this case with the alteration of the period of the initial permission of this case did not have the new consent of captain. Therefore, the rejection of this case is legitimate

C) Determination

(1) First, we examine the interpretation of the part relating to the consent of the right holder of each of the agreements on December 28, 2005 and December 22, 2008.

In the agreement of December 28, 2005, the captain shall enter into this agreement with the owner of the right, such as the permission for the occupation and use of public waters, in relation to the operation and operation of the 1 through 4th of the Hawon, and the construction and operation of the 1 through 4th of the Hawonwon, and shall consent to all the permissions that require the owner of the right, such as the permission for the occupation and use of public waters, and shall actively cooperate in the future affairs related to the authorization and permission," and the captain shall enter into this agreement on December 22, 2008 as of December 1st, 2008, as seen above, in relation to the construction and operation of the 1 to 4th of the Hawonwonwon, the captain shall agree to all the permissions necessary for the consent of the owner of the right, such as the permission for the occupation and use of public waters, etc. related to the operation and construction of the 1 to 4th of the Hawon.

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the expression of intent as stated in the relevant disposal document, unless there is any clear and acceptable counter-proof that the content of the statement is denied. In the event there is any difference in the interpretation of a contract between the parties and the interpretation of the intent of the parties expressed in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and circumstances leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decision 2008Da47367, Aug. 25, 201).

In light of the following circumstances, the aforementioned facts and the purport of the entire arguments, which can be acknowledged by comprehensively taking into account the aforementioned facts, i.e., (i) the conclusion of this agreement with the right holder consent to all permits and permits necessary for the consent, and (ii) the occupancy and use of public waters is an essential element in the operation of nuclear power plants, and there is a need for large number of human, material and time investments in the construction and operation of nuclear power plants. In light of the importance of nuclear power generation in Korea, it is necessary to stably occupy and use public waters in the development of nuclear power plants. Accordingly, once an agreement on the methods of investigation and compensation is reached, it appears that the Plaintiff appears that the above terms and conditions were stated for the purpose of enabling the Plaintiff to continue the construction and operation of nuclear power plants, and (iii) the said construction agreement provides for the methods of investigation and operation of nuclear power plants and the methods of appraisal and assessment within 0 days from the date on which each of the above reports were made and assessment and assessment are made within 60 days from the date on which each report was made.

· It is reasonable to view that the consent of the right holder related to permission to occupy and use public waters is required in relation to the operation thereof.

(2) Next, we examine whether the fishermen belonging to the captain may withdraw this right holder’s consent by failing to perform the Plaintiff’s duty of compensation.

However, as seen above, the plaintiff refused to complete the investigation into damage by the former research institute's captain's captain's captain's captain's captain's captain's failure to make compensation under the "Agreement between the captain's captain's captain's captain's captain's navigation on December 2, 2008" and the "agreement between captain's captain's captain's captain's captain's navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigational navigation's navigational navigational navigational navigational navigational navigational navigational navigational navigation's navigational navigational navigational navigational navigation's navigational navigational navigation's navigational navigational navigational navigational navigational navigational navigational navigation.

(3) Finally, we examine whether the application of this case requires the new consent of the captain of this case.

Article 8 (4) of the former Public Waters Management Act provides that where a person who has obtained permission for occupancy or use intends to change matters prescribed by Presidential Decree, such as the period and purpose of occupancy or use among the matters to be permitted, he/she shall obtain permission for change from the management authority of public waters, and thus a person who intends to obtain permission for change shall obtain consent from the holder of the right to occupancy or use of public waters pursuant to Article 12

However, upon examining the circumstances leading up to the plaintiff's application of this case, the plaintiff applied for permission to occupy and use public waters for three years from April 2009 to April 19, 2012 after entering into each of the following agreements on December 28, 2005, and December 22, 2008 for the construction of 1, 2,000 Riwon, respectively, and applied for permission to occupy and use public waters for three years from April 2009 to April 19, 2012. Since the first permission of this case and the purpose of the public waters for the operation of the main power plant are the same period of permission and the extension of the period of permission, the defendant agreed not only on February 20, 2012, but also on May 14, 2012 to the premise that the captain's first permission of this case and the use of public waters for the purpose of the captain's operation of fishery business under the premise that the captain's subrogation agreement of this case is not necessary.

(4) Therefore, the plaintiff's above argument is reasonable, and the defendant's above argument is without merit. 3) The plaintiff's theory of lawsuit is without merit.

As seen earlier, the instant application shall be deemed to have the valid consent of fishermen belonging to the captain, who are the right holder related to the occupation and use of public waters, and the Defendant’s non-permission disposition of this case premised on the absence of such consent shall be revoked as it is unlawful (as long as the instant non-permission disposition is revoked on the above ground, the remainder of the Plaintiff’s remaining arguments shall not be examined further)

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.

Judges Kim Sang-hoon

Judges Shin Young-ju

Judges Cho Sung-sung

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.