(영문) 수원지방법원 2010.5.28.선고 2008구단1584 판결

The Defendant’s imposition of KRW 56,396,820 of indemnity against the Plaintiff on January 18, 2008 and the imposition of KRW 2,677,450 of indemnity against the Plaintiff on February 14, 2008 shall be revoked, respectively.

Reasons

1. Details of the disposition;

A. On January 18, 2008, the Defendant issued a disposition to impose KRW 56,396,820 on the Plaintiff, pursuant to Article 81 of the Public Property and Commodity Management Act, on the ground that the Plaintiff occupied the underground transmission facilities for the supply of electricity without obtaining permission for the use or profit-making of the public property under the Defendant’s ownership (hereinafter “the public property of this case”).

A person shall be appointed.

B. On February 14, 2008, the Defendant issued a disposition to impose KRW 2,677,450 of the following detailed indemnities pursuant to Article 38 of the River Act on the ground that the Plaintiff without obtaining permission to occupy and use the river under the Defendant’s control (hereinafter the instant river) and without permission to occupy and use the underground power facilities for the supply of electricity (including underground power facilities for the supply of electricity owned by the Plaintiff as mentioned above).

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Korea Water Resources Corporation is deemed to have obtained permission to use and make profits from the public property of this case and permission to occupy and use the river of this case pursuant to Article 21 (1) 1, 6, and 21 of the Industrial Sites and Development Act. The Plaintiff obtained permission to use and make profits from the public property of this case and permission to occupy and use the river of this case from the Korea Water Resources Corporation, and thereafter the ownership of the public property of this case and the river of this case was transferred from the Korea Water Resources Corporation to the Ansan City on April 2004 after obtaining authorization for completion of the construction of a new city development project (hereinafter referred to as the “industrial complex development project of this case”). Accordingly, since the Plaintiff’s possession of the public property of this case and the river of this case was legally commenced, the disposition of indemnity of this case

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 21(1)6 and Article 21(1)21 of the former Industrial Sites and Development Act (amended by Act No. 7512 of May 26, 2005; hereinafter the same shall apply) provide that a project operator shall be deemed to have obtained permission to implement a river project and permission to occupy and use a river under the River Act when he/she has obtained approval of an implementation plan for a national industrial complex, local industrial complex, or agricultural and industrial complex development project under Articles 17 through 19, and that the permission to use and profit from administrative property and conservation property under the Local Finance Act shall be deemed to have been obtained. The legal fiction purpose of such permission is to simplify administrative procedures for the smooth implementation of the project. Thus, the permission to implement a river project and permission to use and profit from administrative property and conservation property deemed to have been maintained in principle only to the extent necessary for the implementation of the relevant industrial complex development project. Accordingly, even if the Plaintiff laid underground underground power facilities to supply electricity to the river or public property as part of the implementation plan for an industrial complex development project, it shall not be deemed to have been granted permission to use or profit from 20.

(2) Since the Korea Water Resources Corporation is a project operator whose implementation plan for the instant industrial complex development project is approved, and is regarded as a person who has obtained permission to execute a river project under the River Act, permission to occupy a river, and permission to use public property under the Local Finance Act and permission to use and profit from public property under the Local Water Resources Act, the Korea Water Resources Corporation may occupy and manage the instant public property and river until the completion of the industrial complex development project and the ownership of the instant public property and river is reverted to the city of Ansan, but the Korea Water Resources Corporation cannot be regarded as the management agency of the instant public property and river.

As above, it is clear that the Korea Water Resources Corporation (the public property and river of this case cannot be permitted to use or profit from the public property of this case and river of this case after the completion of the mountain complex development project) which is mere possession or manager of the public property of this case and river of this case, and it is not possible to use or profit from the public property of this case and river of this case, which can be performed by the management agency of the public property of this case and river of this case. Public facilities newly installed by the implementer who is not an administrative agency after the implementation of the urban planning project belongs to the management agency which manages the new facilities at the same time as the completion of the project. In this case, the ownership directly belongs to the management agency and it is not deemed that the acquisition of ownership is an acquisition by the law (see Supreme Court en banc Decision 96Da24897 delivered on April 15, 199, etc. of this case and the above en banc Decision 96Da24897 delivered on April 15, 199). Even if the former owner or the Korea Water Resources Corporation did not separately permit the Plaintiff's free use of this case.

Therefore, even if the Plaintiff laid the electric power facilities of this case under the permission for free use of the Korea Water Resources Corporation, the Plaintiff cannot be deemed to have a legitimate legal status to use, benefit from, or occupy and use the public property of this case and rivers, since the Plaintiff cannot be deemed to have a legitimate legal status to use, benefit from, or occupy and use the public property of this case and rivers without obtaining permission for use or profit from, or permission for occupation and use of the public property of this case and rivers, and the Plaintiff’

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.