[1] The legal nature of the right to develop and use groundwater and whether the right to develop and use groundwater is naturally transferred when the ownership of groundwater is transferred after the permission to develop and utilize groundwater (negative with qualification)

[2] Whether the transfer or acquisition of the right to develop and use groundwater is permitted (affirmative with qualification), and whether it is necessary to submit the original of the permit to use groundwater at the time of reporting a change in the name of the person who has been permitted to develop and utilize groundwater (negative with qualification)

[1] In full view of the provisions of Articles 3, 5, 6, 7(1), 10(1), 12, 13, 16, and 17 of the former Groundwater Act (amended by Act No. 595 of Mar. 31, 1999), and Article 25 of the former Special Act on Jeju-do Development (amended by Act No. 6249 of Jan. 28, 2000), the use of groundwater within the scope that does not directly affect public interests, such as household wells or common wells, and minor development and utilization, shall be deemed to be the right to use groundwater within the land ownership, and it shall be deemed to be an incidental right to the land ownership. However, since the development and utilization of groundwater beyond the scope of the land is not incidental to the land ownership, it shall be within the scope of the new permission to develop and use and control the land owner's right to use groundwater, as a matter of course, and it shall not be within the scope of the new permission to develop and control the land owner's right.

[2] Since the development and utilization of groundwater with the same number of adjoining underground water can be permitted exclusively to the person who has applied for the permission because he/she had an excessive influence on the original land under the former Ordinance, it shall not be restricted within the extent of the total exploitable volume of groundwater if it exceeds the proper exploitable volume, and even if it is not so restricted, if it is possible to use groundwater with the same number of the same groundwater as the previous Ordinance for the purpose of development and utilization by stating the change of the original groundwater under the name of the owner or the person who has applied for the permission to use groundwater under the former Ordinance to the head of Jeju-do, it shall be allowed to legally change the original groundwater under the name of the owner or the new Ordinance for the purpose of development and utilization under the same condition that the new Ordinance for the purpose of development and utilization under the name of the owner or the new Ordinance for the purpose of development and utilization under the same Act, it shall be allowed for the owner or the person who has the right to use groundwater to lawfully change the original groundwater under the name of the owner or the new Ordinance for the purpose of development and utilization under the same Act.

[1] Articles 3, 5, 7, 8, 10, 12, 13, 17 of the former Enforcement Decree of the Groundwater Act (amended by Act No. 595 of March 31, 199), Article 8, 9, 11, 13, and 17 of the former Enforcement Decree of the Jeju-do Act (amended by Presidential Decree No. 16297 of May 10, 199), Article 6, 7, and 9 of the former Enforcement Decree of the Groundwater Act (amended by Act No. 1951 of May 14, 199), Article 9 of the former Enforcement Decree of the Jeju-do Act (amended by Act No. 1957 of May 14, 199), Article 25, Article 9 of the former Enforcement Decree of the former Special Act (amended by Act No. 6249 of Jan. 28, 200), Article 9 of the former Special Act (amended by Presidential Decree No. 975 of the current Act)

[2] Supreme Court Order 200Ma4798 dated April 30, 2001

Plaintiff

North Korea Head of the Gun;

Gwangju High Court Decision 98Nu146 delivered on June 11, 1999

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

We examine the grounds of appeal.

1. In full view of the relevant provisions of Articles 3, 5, 6, 7(1), 10(1), 12, 13, 16, and 17 of the former Groundwater Act (amended by Act No. 6249 of Jan. 28, 200), and Article 25 of the former Special Act on Jeju-do Development (amended by Act No. 6249 of Jan. 28, 200; hereinafter referred to as the “Special Act”), the use of groundwater within the scope of not directly affecting the public interest, such as household wells or common wells without using groundwater or power equipment, and other minor development and use of groundwater, within the land ownership within the scope of the land ownership and the right to recognize it as incidental to the land ownership, but the development and use of groundwater beyond the scope shall not be incidental to the land ownership, but shall be subject to permission and supervision by administrative agencies, such as the nature, function, and supervision of the use of groundwater as public water resources, etc.

Therefore, since the right to develop and use groundwater belonging to the scope of such regulation does not fall under the scope of the ownership of land, the right to develop and use groundwater is not naturally transferred to a new owner of land because the right to develop and use groundwater is transferred after obtaining permission for the development and utilization of groundwater.

The judgment of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the right to develop and use groundwater. Therefore, the ground of appeal is not accepted.

2. On the other hand, the development and utilization of groundwater with an identical or adjacent large number of floors may not be allowed to the applicant for permission for development and utilization by infringing the existing user's interest after they had an impact on each other. In addition, even though the amount of groundwater reserves is so large that there is no possibility of infringing on the existing user's interest, if the total amount of groundwater is more than the proper amount of groundwater exploitation. Even if there is no such restriction, if the person who has obtained permission for development and utilization of groundwater intends to use groundwater with the same large number of floors than the proper amount of groundwater development principles, the proper amount of groundwater development, the preservation and management of groundwater resources, the prevention of pollution, the prevention of ground subsidence, and the conservation of the ecosystem, etc. It is more desirable for the person who has obtained permission for development and utilization of groundwater to develop and utilize groundwater through the existing groundwater hole if it is sufficient for the person who has obtained permission for development and utilization of groundwater to develop and utilize groundwater through the same number of groundwater in the absence of such restriction. It is not absolutely prohibited by nature in its nature.

Article 15 (4) of the Enforcement Decree of the Special Act stipulates that a person who has obtained permission for the excavation and utilization of groundwater shall report to the Jeju-do Governor within seven days from the commencement and completion of excavation works, waiver or suspension of the utilization of groundwater, or any other cause prescribed by the Jeju-do Ordinance, and Article 58 of the Special Act Enforcement Ordinance delegates the form of the report to the Jeju-do Municipal Ordinance. Article 58 of the Special Act stipulates for the change of the owner of the excavated hole as one of the matters to be reported under Article 15 (4) of the Enforcement Decree of the Special Act. Article 59 of the Enforcement Decree of the Special Act provides for the form of the report, etc. under Article 15 (5) of the Enforcement Decree of the Special Act and provides for the documents to prove the change of the owner of the excavated hole at the time of reporting the change of the owner of the excavated hole, and Article 3 (1) of the Addenda of the Special Act Enforcement Ordinance delegates

The meaning of the system of change of the name of the owner of the groundwater under the Special Act enforcement Ordinance (hereinafter referred to as the "title change") is not to disclose the change of the ownership under the premise that the groundwater hole is established as a real right separate from the ownership of the land and is an object of transaction under the private law independently from the ownership of the land, but to efficiently manage the appropriate groundwater by indicating the person who has lawfully obtained permission for the use of groundwater from the management agency or the person who has acquired the right to use the groundwater from the management agency and indicating the person who has obtained the right to use the groundwater in the public register, so the actual change of the name of the person who has obtained permission for the development and utilization of the groundwater is to change the name of the person who has obtained permission for the development and utilization of the groundwater

In addition, the purport of allowing the parties to submit the original of the groundwater use permit, other than the documents proving the change of the owner as a document attached to the application for change of the name, is that the parties should normally be given to the original transferee in the event of transfer or acquisition of the right to use the groundwater, and that the administrative agency collects the original after confirming the transferor's genuine transfer or transfer of the right to use the groundwater, and issues the original of the new permit for use to the transferee, or issues the original by stating the transfer or transfer of the right to use the groundwater, and in all cases, it cannot be said that it is absolutely necessary documents

However, in cases where the original is not required to be submitted, it shall not be determined as specific and objective criteria, but since the groundwater use right is permitted to contribute to the common use of the groundwater facilities, a person who acquires the entire main facilities for the utilization of groundwater and the site ownership thereof may utilize groundwater in the same way as before, unless there are special circumstances (see Supreme Court Order 2000Ma4798, Apr. 30, 2001). In such cases, for the efficient management of groundwater as prescribed by the Act, the report of change of the name should be accepted even if there is no submission of the original permission for the use of groundwater.

According to the records, the non-party's land adjacent to the land of this case where the groundwater hole is located, and the building of this case, which is the facilities for the use of the groundwater, was successful, and the plaintiff purchased it and completed the registration of ownership transfer. The plaintiff's use of the groundwater is limited to the equipment to supply groundwater to the bath building of this case, which is the facilities for the development and use of groundwater, and the underwater water pumps, container pumps, trawls, earthing pipe, flow pipe, excavating pipe, excavated pipe, etc., which are the facilities for the use of groundwater, and there is room to view that the ownership is transferred to the successful bidder of the building of this case as an accessory which is the common use of the main water because there is no other purpose of use. Meanwhile, the previous person who used the groundwater, asserted that he agreed to receive the price for the power unit of this case from the plaintiff, etc. and did not receive the payment of the price for the power unit of this case.

Therefore, the court below should have judged the legitimacy of the disposition of this case refusing to report the change of the name of the plaintiff in accordance with the exceptional reasons that can report the change of the name without submitting the original permission for the use of groundwater. However, the plaintiff cannot report the change of the name without submitting the original permission for the use of groundwater, and can only utilize the groundwater of this case through the method of applying for new permission for the use of groundwater through the Jeju Do governor. Thus, the court below's determination that the defendant's refusal disposition of this case was lawful is erroneous by misapprehending the relevant statutes or ordinances related to the change of the name of the person using groundwater, or by failing to exhaust all necessary deliberations.

3. Therefore, 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 Seo-sung (Presiding Justice)