[1] Whether the determination of the disposition of permission to occupy and use public waters and the contents thereof under the Public Waters Management and Reclamation Act belongs to the discretion of an administrative agency (affirmative)

[2] The purport of Article 8(1) main sentence of the Public Waters Management and Reclamation Act, Article 4 of the Enforcement Decree of the Public Waters Management and Reclamation Act, and Article 4(2)2 of the former Enforcement Rule of the Public Waters Management and Reclamation Act that an applicant for an occupancy or use permit of public waters shall submit design documents, etc. when applying for an occupancy or use permit of public waters, and whether the management agency of public waters may take a disposition of refusal on the ground that the requirements for permission do not meet the requirements for permission if the applicant for an occupancy or use permit of public waters files an application for an occupancy or

[1] The permission to occupy and use public waters under the Public Waters Management and Reclamation Act is a disposition that establishes an exclusive right to use public waters to a specific person, and the decision of whether to issue a disposition or the contents thereof is, in principle, belonging to the discretion of an administrative agency. In such a discretionary disposition, the disposition is not unlawful unless there is an error in the fact-finding, which serves as the basis of the exercise of discretionary power,

[2] In light of the main sentence of Article 8(1) and Article 8(7), Article 11, Article 12, Article 19(1)3, and Article 21(1)3 of the Public Waters Management and Reclamation Act, Article 4 of the Enforcement Decree of the Public Waters Management and Reclamation Act, and Article 4(2)2 of the former Enforcement Rule of the Public Waters Management and Reclamation Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 219, Jan. 5, 2017), the purport of allowing the management agency of public waters to submit design documents, etc. at the time of applying for an occupancy or use permit of public waters is to determine whether a certain person has a right likely to suffer damage due to permission, etc. by accurately grasping the exact structure, size, location, shape, etc. of an artificial structure to be installed in the relevant public waters, whether a person has a right to obtain permission, etc. (2) whether it is necessary to attach an occupancy or use permit to the public waters or whether it is necessary to restore the occupancy or use permit or not. (3)

Therefore, if a person who applies for an occupancy or use permit of public waters submits an application for a permit without attaching the above design documents, the management agency of public waters can be deemed as failing to meet the requirements for permission, barring special circumstances.

[1] Article 8 of the Public Waters Management and Reclamation Act, Article 27 of the Administrative Litigation Act / [2] Articles 8(1) and (7), 11, 12, 19(1)3, and 21(1)3 of the Public Waters Management and Reclamation Act, Article 4 of the Enforcement Decree of the Public Waters Management and Reclamation Act, Article 4(2)2 of the former Enforcement Rule of the Public Waters Management and Reclamation Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 219, Jan. 5, 2017)

[1] Supreme Court Decision 2002Du5016 Decided May 28, 2004 (Gong2004Ha, 1082) Supreme Court Decision 2014Du2164 Decided September 4, 2014

The Korea-U.S. P. T.D. (Law Firm Lee & Lee, Attorneys Kim Yong-nam et al., Counsel for the plaintiff-appellant)

Kimpo-market (Law Firm LLC, Attorneys Lee Hong-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu52649 decided December 7, 2016

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 2

A. The permission to occupy and use public waters pursuant to the Public Waters Management and Reclamation Act (hereinafter “Public Waters Act”) is a disposition to grant a specific person the exclusive right to use public waters, and the determination of whether or not to grant the exclusive right to use public waters is, in principle, belonging to the discretion of an administrative agency. In such discretionary disposition, the disposition cannot be deemed unlawful unless there is an error in the fact-finding, which serves as the basis for exercising the discretionary power, or there is an error in the application of the relevant statutes (see Supreme Court Decisions 2002Du5016, May 28, 2004; 2014Du2164, Sept. 4, 2014).

According to the main sentence of Article 8(1) of the Public Waters Act, Article 4 of the Enforcement Decree of the Public Waters Management and Reclamation Act (hereinafter “Enforcement Decree of the Public Waters Act”), and Article 4(2)2 of the former Enforcement Rule of the Public Waters Management and Reclamation Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 219, Jan. 5, 2017; hereinafter “Enforcement Rule of the Public Waters Act”), a person who intends to occupy or use public waters for a specific purpose (hereinafter “the occupancy or use”) shall obtain an occupancy or use permit from the management agency of public waters, and a person who intends to obtain such permit shall submit an application for permission accompanied by a business plan, Gu design, design drawings, etc.

Meanwhile, according to the relevant provisions of the Public Waters Act, where there is a person who has a certain right likely to be damaged due to such permission, etc. (hereinafter “person entitled to occupancy or use of public waters”), the management agency of public waters shall not, in principle, grant permission, etc. (Article 12), ② where it is deemed necessary to protect the marine environment, ecosystem, fishery resources and natural landscape, or to prevent damage to fishery, or to manage or operate public waters, additional clauses on the method of occupancy or use, management, etc. (Article 8(7)), ③ where the occupancy or use permission shall be granted within a certain period according to the type of artificial structures to be installed in public waters (Article 11); ④ Where the person who has obtained the occupancy or use permission fails to perform additional clauses under Article 8(7) without justifiable grounds, etc. (Article 19(1)3); and

In light of the relevant provisions, the purport of allowing the submission of design documents, etc. to the public waters when applying for an occupancy or use permit of the public waters is to determine whether (1) there is a person who has a certain right likely to be damaged due to such permit, etc. by accurately grasping the accurate structure, size, location, shape, etc. of artificial structures, etc. to be installed in the public waters in question; (2) whether there is a need to attach an additional official to the methods of occupancy or use or management, etc. for protecting the marine environment, ecosystem, fishery resources and natural landscape; and (3) to determine the period of occupancy or use permit. Furthermore, it is interpreted that (4) whether the person who obtained the occupancy or use permit has properly implemented the above additional clauses or whether the period of occupancy or use has restored the relevant public waters after the expiration of the occupancy or use permit is determined.

Therefore, if a person who applies for an occupancy or use permit of public waters submits an application for a permit without attaching the above design documents, it is reasonable to deem that the management agency of public waters fails to meet the requirements for permission, barring special circumstances, and thus can refuse the application.

B. Review of the reasoning of the lower judgment and the first instance judgment partially accepted by the lower court reveals the following facts.

(1) 소외인은 대한불교대각종 소속의 종교단체인 ‘미륵암’의 대표자로 2007. 5. 2. 피고로부터 김포시 (주소 생략) 구거 1,190㎡ 중 297㎡(이하 ‘이 사건 공유수면’이라 한다)에 관하여 주차장 부지 조성을 목적으로, 허가기간을 2007. 5. 2.부터 2012. 5. 1.까지 5년간으로 하는 공유수면 점용·사용허가를 받아 이를 매립하여 주차장 부지를 조성하였다. 이후 미륵암은 이 사건 공유수면 양 옆에 위치한 토지 및 건물에서 사찰 및 종교단체 봉안시설(이하 ‘이 사건 봉안시설’이라 한다)을 운영하면서 이 사건 공유수면을 주차장으로 이용해 왔다.

(2) On August 23, 2012, the Defendant notified the Nonparty that he/she would apply for the occupancy or use permit of the public waters of this case again because the period of the occupancy or use permit of the public waters of this case expired. The Nonparty applied for the occupancy or use permit of the public waters of this case, along with relevant documents on August 28, 2012. However, the Defendant issued a supplementary notice to “the consent of neighboring local residents, the relevant documents verifying the current status of the application site, the drainage plan and the repair statement for the prevention of disaster” as the shipment, and notified the Nonparty that he/she rejected the application for the occupancy or use permit of the public waters of this case on October 15, 2012, and ordered the Nonparty to reinstate the public waters of this case until November 30, 2012.

(3) Although the Nonparty filed a lawsuit against the return of an application for permission for occupation and use of public waters, the disposition of imposing indemnity, and the order to reinstate the said public waters, the Nonparty was dismissed on February 20, 2014 (Seoul High Court Decision 2012Guhap5736). The judgment was finalized on March 26, 2015 (Seoul High Court Decision 2014Nu3046 Decided November 19, 2014; Supreme Court Decision 2014Du15429 Decided March 26, 2015).

(4) Meanwhile, on November 22, 2013, the Plaintiff acquired the ownership of the instant charnel facility site, etc., and on November 25, 2013, the Nonparty acquired all facilities and rights related to the instant charnel facility and public waters (hereinafter “instant facilities”). On June 15, 2014, the Plaintiff filed an application for permission to occupy and use the public waters with the Defendant as the possession and owner of the instant public waters, and did not attach “design drawings, etc.” among the documents to be attached to the application for permission.

Accordingly, on June 26, 2014, the Defendant rejected the Plaintiff’s application for permission to occupy and use public waters on the grounds that ① the Seoul High Court 2014Nu3046 was in progress, making it impossible to permit the occupancy and use of public waters on the same subject matter, ② failed to meet the documents required under Article 4 of the Enforcement Rule of the Public Waters Act, ③ failed to submit an environmental impact assessment business entity’s written opinion under Article 12(3) of the Enforcement Decree of the Public Waters Act, ④ the above Incheon District Court 2012Guhap5736, and the repair account statement submitted by the Plaintiff is different from the repair account statement submitted by the repair appraiser in the above Incheon District Court 2012Guhap5736 (hereinafter “instant disposition”). The above grounds for disposition are in turn “the instant disposition” and

C. In light of the aforementioned legal principles, the Plaintiff failed to submit design documents, etc. while applying for the occupancy and use permit of the public waters of this case. The Defendant, the management agency of the public waters of this case, was unable to accurately grasp the accurate structure, size, location, shape, etc. of the artificial structure, etc. to be installed on the public waters of this case, barring special circumstances, the Plaintiff’s application for occupancy and use permit may be refused. The Plaintiff’s application for occupancy and use permit was erroneous in fact-finding, which serves as the basis for exercising its discretionary power,

Although the Plaintiff, the transferee of the instant public waters, filed an application for permission to occupy and use public waters with the purport that the Nonparty would use the current status of the site created in the instant public waters as it is, as seen earlier, the Defendant notified the Nonparty that the period of the permission to occupy and use the public waters has expired, and at the same time, returned the application for new occupancy and use permission by the Nonparty, and issued an order to reinstate at the same time, and such return disposition and order to reinstate was not revoked in the litigation procedure and became final and conclusive as it is. Therefore, it is reasonable to deem that the Plaintiff could not be exempt from submitting the design documents, etc. required by the relevant Acts and subordinate statutes solely on the ground that the Nonparty’s previous site for the parking lot created in the instant public waters is not in existence

D. Nevertheless, the lower court presumed that it is unnecessary to attach design documents when it intends to occupy and use public waters as it is, and determined that the Plaintiff applied for the occupancy and use permit to continue to use the public waters of this case as a parking lot site, and thus, determined that the grounds for disposition of this case are not recognized. Furthermore, on the premise that only the grounds for disposition of this case are recognized, the lower court determined that the disposition of this case is a deviation or abuse of discretionary power. In so doing, it erred by misapprehending the legal doctrine on the interpretation and application of Article 4(2) of the Enforcement Rule of the Public Waters Act, which affected the conclusion of the judgment by failing to exhaust all necessary deliberation

2. Therefore, without further proceeding to decide on the remaining 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 Shin (Presiding Justice)