2011Guhap6746 Revocation of final inspection and change of reclamation of public waters

1. A lot shopping company;

2. A corporate hotel lot;

The Commissioner of the Busan Maritime Port Office

May 10, 2013

July 12, 2013

1. The Defendant’s disposition of imposition of KRW 4,652,253,490 on October 18, 201 against the Plaintiffs is revoked.

2. The plaintiffs' remaining claims are dismissed.

3. Three-minutes of litigation costs are assessed against the Defendant, and the remainder is assessed against the Plaintiffs, respectively.

The judgment as referred to in Paragraph (1) and the defendant's disposition of change in the public inspection conducted by the plaintiffs on October 18, 201 shall be revoked.

1. Details of the disposition;

(a) Implementation of a project to create urban districts;

1) On October 7, 1995, the head of Busan Metropolitan City was designated and publicly announced as an urban design and city development project district in order to revitalize the site of 31,000 meters around the city of Jung-gu, Busan Metropolitan City as the site of 1-2,00 meters around the city of Dong-gu, Busan Metropolitan City. On March 7, 1997, the plaintiffs were selected as the implementer of a development project following the development of the above market area. The plaintiffs received authorization to implement the construction project related to the 2nd lot development project around March 1998.

2) Around December 1998, the Minister of Oceans and Fisheries publicly announced a master plan for reclamation of public waters, including the head of the Si/Gun/Gu, the head of Jung-gu, Busan, the central office of Jung-gu, and the head of the Si/Gun/Gu announced the master plan for reclamation of public waters, including the head of the Si/Gun/Gu, around November 2000. The Plaintiffs started construction of the shopping center, including department stores, after obtaining the permission for the second lot lot construction on the 107th ground level above the 7th floor below the ground level

B. Progress of the application for reclamation license

1) The plaintiffs filed an application for reclamation license of public waters with the head of Busan Regional Maritime Affairs and Fisheries (hereinafter referred to as the "Defendant") stated on May 29, 2001 that "the purpose of reclamation shall be 12,772m2 of the site (i.e., a 10,300m square meter + a 2,472m square meter on the coast)" as "the purpose of reclamation is to secure the coast and water-friendly space, and the investment expenses are 6.5 billion won (excluding substitute construction and establishment on the coast)" as "the name of the above administrative agency was changed to the Busan Regional Maritime Port and Port Office (hereinafter referred to as "the above administrative agency was changed to the Busan Regional Maritime Port Office on February 2008); on June 5, 2001, the purpose of reclamation was to request the correction of the land and other facilities related to the project."

2) As a result of consultation with relevant agencies, the Defendant requested the Plaintiffs to supplement the application for reclamation license on July 4, 2001 on the ground that the purpose of reclamation based on the reclamation license’s basic plan for reclamation of public facilities is an urban site (public facilities site). The Plaintiffs requested the return of the application for reclamation license on August 3, 2001 and accepted it and rejected the application for reclamation license on August 6, 2001.

3) On January 30, 2002, the Busan Metropolitan City Mayor issued a public announcement on the amendment of the basic plan for reclamation of public waters, which was to change the purpose of the use of the remaining port area between 1 and 2 North Korea, from the "urban site" to the "other facility site". On February 4, 2002, the plaintiffs filed an application for the reclamation of public waters under Article 609 of the former Public Waters Reclamation Act (amended by Act No. 7531, Mar. 7, 2005) with the "plan for the construction of alternative mooring site for the North Korea-developed land whose function is lost due to reclamation of public waters", along with the "plan for the construction of alternative mooring site for the North Korea-developed land to the defendant on February 4, 2002."

4) Around December 3, 2002, the alternative candidate for the North Korean empty Ocean was determined as a sea area adjacent to the Youngdo Sewage Terminal treatment plant. On December 24, 2002, the Plaintiffs submitted a reply to the Defendant’s request to the effect that they promised to perform the father’s duty of reclamation license and obtained a license for reclamation of public waters including the license father’s authority on the same day. The key contents of the instant license father are as follows.

10. Implementation of the consultation opinion by the relevant authorities: He/she shall observe and execute the consultation opinion by the following agencies related to the present reclamation license.

1) The area included as planned roads among the area of the state property under the jurisdiction of the Korean Office located within the reclamation zone (7-8 1,610 square meters, which is located within the zone of the Ministry of Oceans and Fisheries shall be divided and used after purchase under the State Property Act. 2) The alternative facilities (including entry roads) shall be installed for the facilities extinguished by the reclamation of the vacant land in the presence of the official in charge of land division promotion. 1) The alternative facilities shall be located adjacent to the area adjacent to the Busan Yong-dong, Young-dong, Busan. 200 if the construction cost of the alternative facilities is less than 7-8 1,610 square meters, and the installation cost of the alternative facilities shall be paid to the Korea Office before the completion of the construction project. 3) The difference shall be calculated separately from the construction cost of the alternative facilities under the provisions of the Enforcement Decree of the Public Waters Reclamation Act by the official in charge of the public waters reclamation project (based on the date of the commencement of the construction project).

13. Damage and compensation for loss to others. If there is a rightful person who has the right to any damage or loss incurred due to the execution of the reclamation work, the construction shall begin after the execution of the reclamation work under the burden and responsibility of the person granted the license. However, in case of a civil petition in connection with the execution of the reclamation work, the civil petition shall be settled exclusively at the responsibility and charge of the person granted the license: The above certificate of response shall be complied with in good faith and shall be submitted to the Korean Office before the application for the authorization of the implementation plan.

(c) Authorization and authorization of modification of an implementation plan for reclamation of public waters;

1) On June 10, 2003, the Plaintiffs filed an application with the Defendant for authorization of an implementation plan for reclamation of public waters with "total construction cost of KRW 5.9227.6 million, and 18 months from the date the construction period begins," along with "documents stating measures taken and measures taken according to the subsidiary authority of the reclamation license," etc., and submitted the "written acceptance of the implementation plan for reclamation of public waters related to the license for reclamation of public waters" on September 3, 2003.

2) On January 2, 2004, the Defendant authorized an implementation plan for reclamation works of public waters, which read as "total construction cost of KRW 5.72 billion, construction period of KRW 5.66 million, and construction period of April 7, 2004 to July 31, 2005," and the Plaintiffs submitted a report on the commencement of reclamation works around April 2004.

3) On July 25, 2005, the plaintiffs filed an application for authorization to revise the implementation plan for reclamation works of public waters with the purport that "5.71 billion won" was changed to "from April 7, 2004 to December 31, 2007" due to "the extension of the construction period following the delay of authorization and permission and the extension of the construction period following the implementation of the reclamation license father", and "the construction period was changed to "the period of construction from April 7, 2004 to December 31, 2007". Accordingly, the defendant changed the implementation plan for reclamation works of public waters with "the total construction cost was increased to KRW 5.73 billion", "the total construction cost was increased to KRW 9.9 million", "the construction period was extended to two years and five months", and "the construction period was changed to "the period was extended to December 31,

4) Meanwhile, on April 14, 2006, the Plaintiffs submitted “the total project cost for the reclamation project of public waters and the performance guarantee for the restoration of public waters” and stated the total project cost in KRW 6.7 billion. On July 10, 2007, the Plaintiffs submitted a supplementary report on the assessment of project cost for the instant reclamation project in 2005 and 2006, stating the total project cost in KRW 5.6 billion or KRW 6.4 billion.

5) After that, the Plaintiffs filed an application for modification of the implementation plan for reclamation of public waters to the effect that the construction period should be extended by June 30, 2008 on the grounds of the extension of the alternative construction period again on or around December 2007, and obtained authorization for modification of the implementation plan for reclamation of public waters to the effect that the construction period should be extended by June 30, 2008.

(d) Implementation of harbor works by non-management authorities;

1) In order to implement the instant licensing authority, the Plaintiffs obtained permission for implementation of a non-management authority’s port construction project on April 26, 2005 with regard to the construction works that secure and install substitute facilities for the North-developed sea area whose function is lost due to the implementation of the reclamation of public waters from the Defendant (hereinafter “instant substitute facilities”) pursuant to Article 9(2) of the former Harbor Act (amended by Act No. 8379 of April 11, 2007). The main contents are as follows.

[The Non-Management Authority's name of construction project (Ampire) : The construction site location of the plaintiffs: 500 meters from a breakwater, 360 meters from a water wharf, 15 meters construction period from the date of commencement: 24 months from the date of commencement: the total project cost to obtain permission, approval, reporting, inspection, etc. from the related agencies in relation to construction, and the installation of disaster prevention facilities for pollution, fire-fighting, safety, etc. under the relevant Acts and subordinate statutes and all relevant regulations;

I shall take necessary measures under their own responsibility.10) At the time of consultation on the basic plan for the Busan Port to secure the replacement facilities for the North Korean defectors, I will implement the plan for the implementation of the plan for the measures as well as the relevant matters set forth in the Busan Yong-gu Office's opinion on the plan for the measures as well as the Public Waters Reclamation Center.11) This Corporation is to install the replacement facilities of the North Korean Public Waters Reclamation Center whose functions are lost due to the reclamation of public waters, so the facilities created shall belong to the State at the time of completion under the provisions of Article 17 Section 1 of the Harbor Act, and shall not cover the investment cost.12) Other matters not specified in the other conditions of permission, such as

2) On March 24, 2006, the plaintiffs obtained approval of the non-management authority's implementation plan with the project cost of KRW 27.895 billion with respect to the construction works for the replacement for the North-developed water nursery from the defendant on March 24, 2006, and submitted a report on the commencement of construction on June 1, 2006 by selecting the company as an affiliate company as the contractor for the construction works for the substitute mooring.

3) On March 31, 2008, the Plaintiffs completed the construction work for the replacement of the North-developed Sea Sheet, and received confirmation of completion from the Defendant on April 15, 2008.

(e) Payment of the appraised value of grave sites;

1) Around April 2008, the Defendant requested the Plaintiffs to pay KRW 209,449,240 of the appraised value of the funeral ground locked as a result of the implementation of the reclamation of public waters by implementing the reclamation of public waters, and the Plaintiffs paid it on April 7, 2008.

2) However, on March 16, 2011, the Defendant requested the Plaintiffs to again pay the appraised amount of KRW 253,433,580 (209,449,240 + 10% + value-added tax 10%) on the ground that the appraised amount of a tomb site was “in the event of an error in the authorization of completion of reclamation works even though the appraised amount was paid,” and on March 30, 201, the Plaintiffs paid it on March 30, 201.

(f) Authorization of reclamation of public waters;

1) On May 27, 2008, the plaintiffs filed an application for authorization for completion of reclamation of public waters with regard to 12,737m2 located in Busan Jung-gu, Busan, stating the items of total construction cost of KRW 5,726,60,00,00 in the original gross construction cost, and the settlement total construction cost of KRW 43,632,10,089, and filed an application for authorization for completion of reclamation of public waters with the Defendant on September 22, 2008 (=10,300m2 in the actual site for tourism business + 2,437m2 in the public trial site). The Defendant completed confirmation of completion on June 10, 208, stating that “the construction conforms to the design and drawings,” and issued the completion authorization as stated below.

[Attachment floor for the authorization of completion of reclamation works of public waters]* Reclamation on December 24, 2002: * Place of reclamation: 7 central Dong-dong 7 Busan Central District on December 24, 2002: Land for tourism facilities and site for public facilities* total project cost: 42,479,897,200 won: The completed area: 12,679.4m2 [6,187.9m2] of the total reclaimed land [6,187.9m2 + 3,81.9m2,671.9m2,6m2,67.9m of remaining reclaimed land for public use + Period of construction (26,21,590,300 won)]* Construction period: April 7, 2004; or May 27, 2008

2) On October 21, 2008, the Plaintiffs completed the registration of preservation of ownership on the reclaimed land of public waters equivalent to the portion of total project cost recognized, and on January 15, 2009, paid 26.6 billion won to the Korea Asset Management Corporation and acquired the ownership on the remaining reclaimed land.

G. On April 23, 2010, the Board of Audit and Inspection notified of improper calculation of the total project cost by the Board of Audit and Inspection (Board of Audit and Inspection) conducted an audit on the Defendant in charge of reclamation of public waters on April 23, 2010, approximately KRW 34.3 billion in the construction cost of the instant substitute facilities (i.e., KRW 34.4 billion in the construction cost of the substitute mooring area + KRW 250 million in the construction cost of the substitute mooring area), and notified the Defendant that it is unreasonable to include the construction cost of the substitute facilities in the total project cost, and requested the Defendant to take disciplinary action against the public official in charge, and the public official in charge of affairs

H. On July 19, 201, the Defendant, upon notification by the Board of Audit and Inspection, notified the Plaintiffs of completion of reclamation works of public waters and restitution of unjust enrichment.

In relation to the reclamation works of this case in Busan Sea, the construction costs for the substitute mooring site in the North Sea which ceases to exist due to the reclamation of public waters shall be determined as the total project cost required for the implementation of the reclamation license officer, and the construction works for the substitute mooring site shall be calculated by including them in the total project cost. However, the construction works for the substitute mooring site shall be determined at the request of the Board of Audit and Inspection that the construction costs for the substitute mooring site shall not be deemed as the expenses required for the implementation of the reclamation license officer, and the total project cost shall be determined at the request of the Board of Audit and Inspection that the construction costs for the substitute mooring site shall not be deemed as the expenses required for the implementation of the reclamation license officer, and the construction works for the reclamation of public waters shall be planned to change the authorization for the completion of reclamation of public waters, and the total project cost shall be 34,082,515,560 won (the construction cost for the reclamation of public waters 4,96,761,743 won) x 11.1.1.

(i) Inspection on completion of reclamation of public waters, change and disposition of imposing fees for State property;

On September 22, 2008 to September 30, 2011, the date of authorization for completion of reclamation of public waters (hereinafter referred to as the “instant change disposition”) was imposed by the Defendant on the Plaintiffs by re-fixing the total project cost as follows: (a) 4,652,253,490 won (i.e., the principal amount of KRW 4,229,321,360 + value-added tax 42,932,130 + value-added tax 42,130 won (hereinafter referred to as the “instant use fee”).

[Modification of Completion of Public Waters Reclamation Works]

A person shall be appointed.

* The project cost and completion area are the same as the original authorization.

Pursuant to Article 47 of the Public Waters Management and Reclamation Act, 36.9 meters of remaining reclaimed land shall be deemed to have been purchased by the recipient on March 30, 201 by the recipient of the project on March 30, 2011.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 1 through 9, 12, 15 through 18, 22, 23 evidence, Eul's statements, 1 through 4, 9, 17, 18 evidence, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

1) The assertion on the change disposition

A) Non-existence of the grounds for disposition

In light of the following circumstances, the construction cost of the instant substitute facility is included in the total project cost of reclamation works, and therefore there is no defect in the original completion disposition, and there is no reason to dispose of the instant substitute facility.

(1) Article 20(4)5(g) of the Enforcement Decree of the Public Waters Reclamation Act provides that the costs incurred in the implementation of the reclamation license’s additional pipes shall be the total project cost. Since Article 20(4)5(g) of the Enforcement Decree of the Public Waters Reclamation Act provides that a license holder shall install alternative facilities for the harbor facilities extinguished by the reclamation of the North Korean Public Waters Reclamation, the costs incurred in installing the instant substitute facilities shall be included in

(2) While the instant sub-section provides that “alternative facilities shall be completed before the completion of reclamation of public waters with the burden and responsibility of the licensee and shall be reverted to the State”, the content is merely the obligation to revert to the State after completion of construction at the expense and responsibility of the licensee, and the right to acquire the ownership of reclaimed land equivalent to the total project cost is granted pursuant to Article 26(1) of the Public Waters Reclamation Act, which is a mandatory provision. Thus, if the instant sub-section does not include the construction cost of substitute facilities in the total construction cost, the instant sub-section violates the compulsory provision and thus is invalid, and the instant disposition based on an invalid sub-section is unlawful.

(3) The Defendant excluded the benefits of the right to free use of harbor facilities recognized by the Harbor Act by specifying that the terms and conditions of permission for the construction of the instant substitute facilities do not cover the investment cost for the facilities. Such terms and conditions of permission are premised on the fact that the construction cost of the instant substitute facilities is included in the total project cost of the instant reclamation works.

(4) The subsidiary of the instant case states that the construction cost of the substitute facility is the appraised price of the port facilities (0 and M seedlings, etc.) locked by the installation of the substitute facility and the cost of the construction of the substitute site. If the substitute facility is not included in the total project cost, the subsidiary of the instant case need not determine the details of the construction cost of the substitute facility.

(5) The construction of the instant substitute facility may be assessed as compensation for the North-developed land booms existing in the public waters subject to reclamation, and the compensation is recognized as total project cost.

B) Non-existence of authority to change a disposition

In light of the following circumstances, the Defendant did not have the authority to take the instant disposition, and thus, the instant disposition is unlawful.

(1) In the reclamation of public waters, the authorization of completion is a condition precedent for the effective effect of the reclamation license, and the person who is exempted from the reclamation is seeking the requirement for acquiring ownership of reclaimed land equivalent to the total project cost.

As a confirmation disposition recognizing the facts, the defendant's authorization of completion was obtained and the reason for invalidation was not attributable to the defendant, and thus, it cannot be changed at will, unless there is any reason for invalidation, and the defendant, on September 21, 2008, prevented the state until three years have passed since the completion approval of the reclamation license of this case was granted to the plaintiffs, and thus, the right to change the first disposition was extinguished in accordance with the principle of forfeiture of rights.

(2) The completion authorization is a confirmation of whether the reclamation work has been executed on the face of the discharge and the extension of the implementation system, and the total project cost is not determined, but the total project cost for the reclamation of public waters is calculated according to the Public Waters Reclamation Act and the Enforcement Decree of the same Act. Therefore, the defendant has no legal authority to change the completion authorization on the ground

C) Violation of the principle of trust protection.

In the process of consultation with the plaintiffs, the defendant revealed that the construction cost of the instant alternative facilities is included in the project cost, and proposed a policy to settle the project cost that public officials B belonging to the defendant included the construction cost of the alternative facilities in the total project cost with the approval of the director, and expressed official opinions by notifying the plaintiffs with the approval of the director. The plaintiffs trust the defendant's statement of opinion and invested the enormous construction cost of 34.1 billion won in the installation of the alternative facilities. The defendant made the instant disposition contrary to his public opinion statement, thereby causing considerable loss to the above construction cost. Accordingly, the instant disposition is unlawful against the principle of trust protection.

D) Violation of the principle of proportionality

The Plaintiffs spent a total of KRW 42.4 billion (the reclamation cost + KRW 8.3 billion + the replacement facility construction cost) at the instant reclamation work cost, and acquired land equivalent to KRW 48.8% of the total reclaimed land upon the previous completion inspection. The Plaintiffs only acquired land equivalent to KRW 9.4% of the total reclaimed land due to the instant disposition, which is in violation of the principle of proportionality.

2) Claim on the disposition imposing user fees

Since the possession of reclaimed land acquired by the plaintiffs is lawful in itself as well as lawful, as long as the right to receive negligence is recognized as a possessor in good faith, the imposition of usage fees is also unlawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Determination as to whether a modified disposition is lawful

A) Determination as to the non-existence of grounds for disposition

(1) Article 26 (1) 3 of the former Public Waters Reclamation Act (amended by Act No. 7482 of Mar. 31, 2005; hereinafter the same) provides that "the total project cost required for the reclamation work in question as determined by the Presidential Decree among reclaimed land except reclaimed land, the ownership of which is acquired by the State or a local government, shall be acquired on the date when the reclamation licensee obtains the authorization of completion under Article 25." Article 20 (4) of the former Enforcement Decree of the Public Waters Reclamation Act (amended by the Presidential Decree No. 19080 of Sep. 30, 2005; hereinafter the same) provides that "the total project cost required for the reclamation work in question as determined by the Presidential Decree" means the total amount of expenses falling under the following subparagraphs related to the reclamation work in question as of the date of application for the authorization of completion of reclamation work, and provides that "survey cost, design cost, compensation cost, net construction cost, increase in construction charges, and other expenses for reclamation license, construction and construction supervision, charges, charges."

(2) As above, the former Public Waters Reclamation Act stipulates the total project cost as the total project cost required for the reclamation work in question (the total amount of research cost, net construction cost, compensation cost, and other expenses) as determined by the Presidential Decree, and the Enforcement Decree provides that the additional part of the reclamation license of this case requires the plaintiffs to install alternative facilities, barring any special circumstances, the replacement facility construction cost of this case shall be included in the total project cost. However, since the reclamation license of public waters is a discretionary administrative act, and there is no legal basis for discretionary administrative act, it is possible to attach additional clauses that are borne to the person who obtained the license without any legal basis. Therefore, if it is recognized that the expenses required for the execution are not required for the reclamation work, but for the implementation should be excluded from the calculation of the total construction cost if it is considered that the additional part of the reclamation license of public waters is to be returned to the person who received the license, such as the reclamation license of public waters, the total project cost should not be included in the total project cost as determined by the former Public Waters Reclamation Act.

(3) On the other hand, this case’s restoration back to the end, the stability of the situation and the purpose of the entire arguments on the evidence before sunrise, namely, Article 10 of the License Division of this case’s construction of alternative facilities for the North Korean water boom which ceases to exist due to the reclamation of this case’s reclamation, and the replacement facilities belong to the State after completion of the expenses and responsibility of the licensee before the reclamation of public waters. As such, the implementation of the above Sub-Section 20(1) of the Public Waters Reclamation Act is deemed to be borne by the Plaintiffs who were the licensee, and ② the reclamation licensee for the public waters with the right as prescribed in Article 12 of the Public Waters Reclamation Act must compensate for losses or install facilities to prevent such losses under the conditions as prescribed by the Presidential Decree.

고 규정하고, 제12조는 공유수면에 대하여 권리를 가진 자를 '법령의 규정에 의하여 공유수면의 점·사용 허가를 받은 자(제1호), 어업권자 또는 수산업법 제2조제7호의 규정에 의한 입어자(제2호), 법령의 규정에 의하여 허가를 받아 공유수면으로부터 인수하거나 공유수면에 배수하는 자(제3호)'로 규정하고 있으므로, 이 사건 매립으로 북빈물양장이 소멸됨으로써 국가가 입는 손실 또는 손해는 공유수면매립법이 정하는 보상 대상이 아니고, 따라서 피고는 대체시설의 건설을 조건으로 하는 이 사건 부관을 원고들의 부담으로 하기 위하여 붙인 것으로 보이는 점, ( 구 공유수면매립법 제26조 제1항 제3호는 사업시행자가 취득할 매립지에 상응하는 총사업비를 "당해 매립공사에 소요된 총사업비(조사비 설계비 순공사비 보상비 기타 비용을 합산한 금액으로 한다)"로 규정하고 있는데, 이 사건 대체시설 건설공사비는 이 사건 매립공사에 소요된 것이라고 보기 어려운 점, 4 이 사건 부관에서 대체시설의 실지로 잠식되는 항만시설의 감정가액을 공사 전에 피고에게 납부하여야 한다고 규정하고 있고, 이 사건 부관 제10. 가. 2) ②에 '대체시설 건설비용이 북빈물양장 감정가격보다 적을 경우 그 차액을 피면허인이 우리청에 납부한다'고 규정하고 있는 사정에 비추어 이 사건 부관에서 대체시설 건설비용의 내역을 규정한 것은 그 내역을 확정함으로써 잠식되는 항만시설과의 가액 차이를 확실하게 하기 위한 것으로 보이는 점, 5: 항만법이 비관리청 항만공사의 경우 비관리청이 국가 또는 지방자치단체에 귀속된 항만시설을 총사업비 범위 내에서 무상으로 사용할 수 사용할 수 있다고 규정한 것은 민간사업자가 새로이 시설을 설치하고 이를 국가 또는 지방자치단체에 귀속시키는 대신에 무상사용권을 부여하자는 취지이므로, 원고들의 공유수면매립으로 인하여 기존 항만시설이 폐지됨으로써 그 대가로 항만 시설을 설치한 이 사건의 경우에까지 부상사용권이 부여되는 것이라고 할 수 없는 점, (6) 원고들과 피고는 수회에 걸쳐 이 사건 대체부두 건설비용을 총사업비에 포함시킬지 여부를 협의하였으나 결론을 도출하지 못하였는데, 피고는 2002. 12. 6. 대체계류지 확보계획을 수립하면서 원고들의 부담과 책임으로 대체계류지를 건설한다는 방침을 정하였으며, 같은 해 12. 24. 이 사건 면허신청에 대한 검토 시에도 대체시설 건설비용은 원고들이 부담하기로 하는 방침을 그대로 유지하여 이 사건 부관을 붙은 것으로 보이는 점, ⑦① 갑 제26호증의 2, 을 제17호증의 각 기재에 의하면, 원고들은 공유수면매립 면허신청서에 총공사비를 65억 600만 원으로 기재하고, 첨부된 자금조달계획서에 대체시설 건설비용을 '별도'로 표시한 사실을 인정할 수 있고, 이에 의하면, 원고들은 이 사건 부관을 자신들의 부담으로 수인하기로 하여 총공사바에서 제외한 것으로 보이는 점, ⑧ 롯데타운이 건설되는 구 부산시 청사 부지 인근에는 이 사건 공유수면 이외에는 약 10,000㎡ 상당의 나대지 또는 이에 준하는 토지가 존재하지 않으므로 원고들로서는 롯데타운의 규모를 확대하기 위하여 적지 않은 부담을 안고서도 이 사건 매립면허를 받은 것으로 보이는 점, ⑨ 피고는 이 사건 북빈물양장을 폐쇄하거나 이전할 계획을 수립하지 않고 있었으므로, 원고들이 매립면허를 받기 위하여는 대체시설 공사계획을 세워 피고에게 제시하여야 할 필요성이 있었던 것으로 보이는 점, 10 원고가 멸탈 없이 사용되고 있던 항만시설을 자신의 사업을 위하여 매립하고 대체시설을 건설하였다고 하여 그 공사비를 총매립공사비에 포함시켜 그에 상응하는 매립지에 대한 소유권을 부여하는 것은 과잉보상이라고 보이는 점에 비추어 보면, 이 사건 대체시설 건설비용은 그 부관의 내용, 성격, 첨부된 경위에 비추어 그 이행에 소요되는 비용이 매립공사에 소요된 것이 아니고, 온전히 피면허자의 부담으로 돌아갈 부관이 이어서 총공사비에서 제외되어야 할 것이므로, 이 부분 원고들의 주장은 이유 없다.

B) Determination as to the non-existence of the changed disposition authority

(1) If an administrative agency finds a mistake in a disposition it has taken, it may revoke or alter the disposition ex officio to correct the error, unless the other party’s right, interest, or public welfare is infringed upon due to the revocation, or the administrative disposition is procedurally confirmed, judged, quasi-judicial nature, or has the power to confirm the pertinent disposition in accordance with the legal provisions, unless there are exceptional circumstances such as having the nature of confirmation and quasi-judicial nature or having the power to confirm the litigation.

On the other hand, the term "the rights and interests acquired by the other party" as mentioned above refers to the rights and interests directly derived from the disposition in question, such as a construction permit disposition, and does not include the rights or interests arising from the requirements prescribed by law, such as the case of authorization for completion of reclamation of public waters. The right to cancel or change the authorization for completion of reclamation of public waters held by an administrative agency shall not include the rights or interests arising from the disposition in question. The right to cancel or change the authorization for completion of reclamation of public waters arises due to the original authorization disposition, transfer of the reclaimed land to another person, etc., or the State or a local government has the right to claim a return of unjust enrichment against the other party due to erroneous disposition, and the right to claim is restricted

(2) Article 25 of the former Public Waters Reclamation Act provides that "When a person completes a reclamation work, he shall without delay determine the location of the reclaimed land for which he wishes to acquire ownership and the category of the reclaimed land under Article 5 of the Cadastral Act and apply for the authorization of completion to the Minister of Maritime Affairs and Fisheries under the conditions as prescribed by the Presidential Decree." Article 26 (1) provides that "a person who intends to obtain the authorization of completion under Article 25 of the Act shall submit an application for the authorization of completion and related documents to the Minister of Maritime Affairs and Fisheries as prescribed by the Ordinance of the Ministry of Maritime Affairs and Fisheries." Article 25 of the former Public Waters Reclamation Act provides that "When he has received an application for the authorization of completion under paragraph (1), he shall conduct a necessary inspection for the authorization of completion and deliver a certificate of completion to the person who passed the inspection as prescribed by the Ordinance of the Ministry of Maritime Affairs and Fisheries."

(3) In light of the above legal principles and statutes, the authorization for completion of reclamation works on public waters is a condition of suspension necessary for the project implementer, the State or a local government to acquire the ownership of reclaimed land at the same time, and if the total project cost was calculated against the provisions of statutes at the time of the disposition for the completion of construction of a reclaimed land, since the total project cost was determined by the total project cost that the project implementer acquired the ownership according to the total project cost that is the constituent element of the authorization for completion, it shall be deemed that the person who completed the construction may correct it and make a new disposition. The defendant shall not be able to cancel or change it on the ground that three years have passed after the initial authorization was issued, or that there was no reason for the immediate invalidation (only if the total project cost cannot be corrected because it is calculated by a statute, it shall be concluded that there is no need to calculate the total project cost in the first completion inspection).

C) Determination on the assertion of violation of trust protection

For the purposes of applying the principle of trust protection, administrative agencies shall express the public opinion that is the object of trust to individuals, and administrative agencies shall not be responsible for the individual's reliance on the legitimacy of the statement of opinion and trust of the administrative agencies. It should have committed any act based on the individual's reliance and trust. The evidence Nos. 19-1 and 2 (Report on Results of Each Business trip), which correspond to the plaintiffs' assertion, are prepared voluntarily by the plaintiffs' employees, and it is difficult to believe the contents as they are. In addition, it is somewhat unreasonable to recognize the substitute construction cost as the total project cost in consultation with the plaintiffs' employees in relation to the inclusion of the total project cost of the substitute construction cost with the plaintiffs' employees. The statement that the defendant's person in charge of the defendant's reliance on the fact that it is reasonable to recognize the substitute construction cost as the total project cost, cannot be acknowledged that the defendant expressed the public opinion that included the construction cost of the substitute facilities in the total project cost of this case in the total project cost of this case to the plaintiffs.

In addition, the following circumstances acknowledged by the evidence revealed in the above time, namely, the Plaintiffs calculated the investment cost at KRW 6.5 billion, stating that the construction of alternative facilities and the construction of the coast at the time of the first reclamation license are separate; the Plaintiffs did not include the construction cost of alternative facilities in the total construction cost even at the time of authorization of the implementation plan; the Plaintiffs did not include the construction cost of alternative facilities at the time of authorization of the implementation plan; the Plaintiffs submitted a certificate of implementation of restoration to the original state; the Plaintiffs did not include the construction cost of alternative facilities in the total construction cost; and the construction cost of alternative facilities is not included in the total construction cost at the time of submission of a certificate of completion of restoration to the original state; and the Plaintiffs were not included in the completion certificate of completion as of June 10, 2008. Therefore, the Plaintiffs’ assertion in this part is without merit.

D) Determination on the assertion of violation of the principle of proportionality

The disposition of this case is to revise the original disposition in line with the calculation of total project cost under Article 26 (1) 3 of the former Public Waters Reclamation Act, which is established to coordinate interests between a project operator and the State, thereby complying with the principle of suitability in that it preventss the State from unjust losses and unjust interests. Since the plaintiffs can acquire reclaimed land equivalent to total project cost, it cannot be deemed as an infringement of legal interests on the ground that the disposition of this case is recovered from unjust interests. The disadvantage claimed by the plaintiffs is not recognized by the statutes originally, and the need for public interest to cancel the construction completion disposition of B/L is much larger than the disadvantage suffered by the plaintiffs. Thus, the plaintiffs' assertion that the disposition of this case goes beyond the principle of proportionality is without merit.

2) Determination as to whether a disposition imposing user fees is lawful

On the premise that the plaintiffs occupy and use the reclaimed land of this case without legal title, the imposition of usage fee of this case is imposed in KRW 4,652,253,490 between September 22, 2008 and September 30, 201. Article 26 of the former Public Waters Reclamation Act provides that "the reclamation licensee shall acquire the ownership of reclaimed land equivalent to the total project cost required for the reclamation work in question as determined by the Presidential Decree from among reclaimed land except feassing the ownership acquired by the State or a local government on the date of obtaining the authorization of completion in accordance with Article 25." Thus, the plaintiffs shall have acquired the ownership of reclaimed land, the usage fee of which the defendant imposed by the defendant, from September 22 to September 30, 201.

Therefore, even if there was an excessive settlement of project expenses in the process of the instant authorization completion disposition, it cannot be deemed that the Plaintiffs acquired the ownership of the instant reclaimed land before the revocation or alteration of the excessive portion of the project expenses is made during the instant authorization completion disposition. Since the occupation and use of the instant reclaimed land is based on their ownership and it cannot be deemed unfair, it is unlawful to impose usage fees prior to the instant change disposition.

3. Conclusion

Therefore, the plaintiffs' claims against the disposition imposing user fees among the claims in this case are justified, and the plaintiffs' claims against the disposition of modification in this case are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge, Chuncheon machine

Judge Doo

Judges Senior Superintendent and Senior Superintendent

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.