(a) The validity of the reclamation license under the former Public Waters Reclamation Act (No. 986 of Jan. 20, 1962) with respect to the reclamation of the land corresponding to the land improvement project under the former Land Improvement Project Act (No. 948 of Dec. 31, 1961);

(b) The case reversing the judgment of the court below which did not examine and determine whether the maintenance of dispute constitutes public waters at the time of the reclamation license of public waters and whether it constitutes necessary reclamation to change to a reservoir under other Acts and subordinate statutes under the Public Waters Reclamation Act;

A. If the reclamation of the maintenance falls under the land improvement project under the former Land Improvement Project Act (Act No. 948 of Dec. 31, 1961), even if the reclamation license was granted under the former Public Waters Reclamation Act (Act No. 986 of Jan. 20, 1962), it is in violation of Article 3(2) of the same Act, and the defect is significant and obvious and thus, it shall be null and void.

B. The case reversing the judgment of the court below on the ground that, even if it was questionable at the time of the reclamation license of public waters as to whether a dispute maintenance constitutes public waters under Article 2 subparagraph 1 of the Public Waters Reclamation Act, and even if it falls under public waters, the part of the maintenance at the time was discussed about a trokelet, and if the remainder was formed in the atmosphere of the earth and sand, it is doubtful whether the application of the former Public Waters Reclamation Act under Article 3 (2) of the former Public Waters Reclamation Act (Act No. 948 of Dec. 31, 1961) is not excluded under Article 3 (2) of the former Public Waters Reclamation Act. Thus, the court below should have deliberated and decided on whether it constitutes public waters under Article 2 subparagraph 1 of the same Act in the maintenance license and whether it constitutes public waters under Article 2 (2) of the same Act and whether it constitutes public waters under Article 3 (2) of the same Act, it did not reach

(a)(b)Article 3(2) of the former Public Waters Reclamation Act (Act No. 986, Jan. 20, 1962); Article 2(2)(b) of the former Land Improvement Project Act (Act No. 948, Dec. 31, 1961); Article 2(1) of the former Public Waters Reclamation Act (Act No. 1962, Jan. 20, 196); Article 183 of the Civil Procedure Act

Plaintiff

Korea

Gwangju High Court Decision 91Na3467 delivered on January 29, 1992

The judgment below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

On June 4, 1962, the court below acknowledged that the reclamation license was completed in the name of the defendant as stated in the judgment of the court below on the ground that the plaintiff violated the provisions of Article 3 (2) of the Public Waters Reclamation Act, "this Act does not apply to reclamation necessary for changing ditches or reservoirs under other Acts and subordinate statutes," and thus, it was judged that the maintenance of this case was maintained as the category of land, but it was not possible to find out that the plaintiff had been used as a reservoir prior to the reclamation, and that the part of this case was formed as the remainder of this case. The court below rejected the plaintiff's assertion that the reclamation license was null and void since it was in violation of the provisions of "this Act is not applicable to reclamation necessary for changing ditches or reservoirs under other Acts and subordinate statutes."

In short, the above determination by the court below is understood to the effect that the maintenance of this case at the time of the above reclamation license constitutes public waters under Article 2 subparagraph 1 of the Public Waters Reclamation Act, and that the above reclamation license is legitimate since the current status is not a reservoir, it is not subject to Article 3 (2) of the same Act.

However, Article 2 subparagraph 1 of the Public Waters Reclamation Act (Act No. 986 of Jan. 20, 1962) which was enforced at the time of the above reclamation license refers to the water or water surface used for rivers, seas, lakes, or other public use, which belongs to the ownership of the State. Article 3 (2) of the same Act provides that this Act shall not apply to reclamation necessary for changing ditches or reservoirs pursuant to the provisions of other Acts and subordinate statutes. Article 2 (2) of the former Land Improvement Project Act (Act No. 948 of Dec. 31, 1961) provides that "land improvement project" means the following projects implemented pursuant to this Act. Article 2 (2) of the same Act provides that construction, management, abolition or alteration of irrigation roads and other facilities necessary for the conservation and use of farmland, and Article 3 (2) of the former Public Waters Reclamation Act provides that the above provisions of the Public Waters Reclamation Act shall not apply to reclamation projects, and it is doubtful whether the above provisions of the former Public Waters Reclamation Act shall apply to the above provisions of Article 2 (3).

If the reclamation of this case constitutes a land improvement project under the former Land Improvement Project Act, even if the reclamation license under the Public Waters Reclamation Act was granted, it is in violation of Article 3 (2) of the same Act, and it cannot be said that the defect is significant and obvious and thus void.

Despite the fact that the court below should have deliberated and judged whether the reclamation license of this case constitutes public waters under Article 2 subparagraph 1 of the Public Waters Reclamation Act and whether it constitutes necessary reclamation for changing to reservoirs under other Acts and subordinate statutes under Article 3 (2) of the Public Waters Reclamation Act, the reclamation license of this case is legitimate only for the reasons stated in its reasoning, and there is an error of law by failing to exhaust all necessary deliberations and interpretation of the above provision without complying with Article 3 (2) of the Public Waters Reclamation Act.

Therefore, without examining other grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-ju (Presiding Justice)