Whether a local government to which the river management agency belongs is liable to compensate for damage as a manager of a local river pursuant to Article 5 (1) of the State Compensation Act in cases where damage is incurred due to a defect in the management of a local river while the Minister of Land, Transport and Maritime Affairs vicariously executes a river work (affirmative)

Even if the Minister of Land, Transport and Maritime Affairs vicariously executes river works pursuant to Article 28 (1) of the former River Act (amended by Act No. 11194, Jan. 17, 2012), it can be deemed that the Minister temporarily exercises his/her authority over river management, and the river management agency does not change to the Minister of Land, Transport and Maritime Affairs. Thus, if damage was incurred due to defects in the management of local rivers while the Minister of Land, Transport and Maritime Affairs vicariously executes river works, the local government to which the river management agency belongs shall be liable as the manager

Article 5(1) of the State Compensation Act; Articles 8(2), 27(5), 28(1), 75(1), and 78(1)2 of the former River Act (Amended by Act No. 11194, Jan. 17, 2012);

Plaintiff

Republic of Korea and one other (Attorney Lee Jae-ju, Counsel for the plaintiff-appellant)

Jeonju District Court Decision 2011Na2992 decided September 9, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to Defendant Republic of Korea’s ground of appeal No. 1

A. Review of the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court reveals the following facts.

① As part of the Geum River basin flood control project in April 2003, the Dosan Regional Land Management Office under the Defendant Republic of Korea established a river improvement plan to complete May 2008 after the commencement of May 1, 2003 and the establishment of a river improvement plan to complete May 2008, the construction was ordered in June 2003.

② As a result, the construction was completed with respect to the area 2,00,000 square meters around the end of 207, but the compensation for the expropriation of land, etc. was not completed, and thus, the construction was not performed with respect to approximately 200 meters near the flood sea area of this case.

③ At around September 2008, no particular measure was prepared, and the construction of an embankment near the flood sea area of this case was delayed. At around July 15, 2009, water from a river did not work around 03:00, and the flood of this case occurred.

B. The lower court determined that the instant flood damage occurred due to the defect in the management of the long-term river based on the foregoing factual basis.

C. Examining the records in light of the relevant legal principles, such determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the defects in river management, or by failing to exhaust all necessary

2. As to the grounds of appeal Nos. 2 and 3 by Defendant Republic of Korea

For the reasons indicated in its holding, the lower court determined that the Defendant Republic of Korea is not only liable for damages caused by defects in the management of the long-term charter party pursuant to Article 6(1) of the State Compensation Act, as well as for the possession and manager of the long-term charter party, and further, it is difficult to deem the flood disaster of this case as an force majeure disaster caused by natural disaster.

Examining the record in light of the relevant legal principles, the said determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the manager of public structures, the person bearing the expenses, and force majeure, or by failing

3. As to Defendant Jeollabuk-do’s ground of appeal

The former River Act (amended by Act No. 11194, Jan. 17, 2012; hereinafter “former River Act”) provides that “a local river shall be managed by the Mayor/Do Governor within his/her jurisdiction” (Article 8(2)), “a river work and the maintenance and repair of a river shall be implemented by the river management agency except as otherwise provided for in this Act” (the main sentence of Article 27(5)), and the Minister of Land, Transport and Maritime Affairs may, if deemed necessary, execute any river work on behalf of the Mayor/Do Governor” (Article 28(1)).

However, the former River Act, if necessary for river management, such as river works on behalf of the Minister of Land, Transport and Maritime Affairs, may enter land of others or use it temporarily as temporary roads, etc., and does not include any provision that restricts the authority held by a Mayor/Do Governor and a Mayor/Do Governor (Articles 75(1) and 78(1)2).

Therefore, even if the Minister of Land, Transport and Maritime Affairs vicariously executes river works pursuant to Article 28 (1) of the former River Act, it can be deemed that the Minister temporarily exercises his/her authority on river management and the river management agency does not change to the Minister of Land, Transport and Maritime Affairs. Thus, if damage was incurred due to defects in the management of local rivers during the execution of river works by the Minister of Land, Transport and Maritime Affairs, the local government to which the river management agency belongs

In the same purport, the lower court was justifiable to have determined that Defendant Jeollabuk-do was liable to compensate the Plaintiff for damages caused by the flood damage of this case. In so doing, it did not err by misapprehending the legal doctrine on the manager of public structures, etc., contrary to what is alleged in

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)