Plaintiff 1 and two others (Attorney Kang Byung-chul, Counsel for the plaintiff-appellant)

Jeju Special Self-Governing Province Governor (Attorney Do governor, Counsel for defendant)

September 11, 2013

Jeju District Court Decision 2012Guhap687 Decided February 20, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Purport of claim

A. The primary purport of the claim

On September 28, 2011, the Defendant’s announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 201-798, September 4, 2012, the announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 2012-102, and the announcement of the implementation plan for harbor works issued by Jeju Special Self-Governing Province Ordinance No. 2013-18, Jan. 9, 2013

B. Preliminary purport of claim

The Defendant’s announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 201-798 on September 28, 201, the announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 2012-102 on September 4, 2012, and the announcement of the implementation plan for harbor works under the Jeju Special Self-Governing Province Notice No. 2013-18 on January 9, 2013

2. Purport of appeal

In the judgment of the first instance court, the part against the plaintiffs in the judgment is revoked. In the first instance court, the defendant's announcement of the implementation of a harbor project under Article 2012-102 of the Notice of Jeju Special Self-Governing Province, and the announcement of the implementation plan under Article 2013-18 of the Notice of Jeju Special Self-Governing Province on January 9, 2013 is confirmed to be null and void. In the first instance, the defendant's announcement of the implementation of a harbor project under Article 2012-102 of the Notice of Jeju Special Self-Governing Province on September 4, 2012 and the announcement of the implementation plan for a harbor project under Article 2013-18 of the Notice of Jeju

1. Quotation of judgment of the first instance;

A. The reasoning for the court’s explanation on this case is to replace the relevant laws and regulations of the first instance court with those of the relevant laws and regulations, and to accept them as they are, except for the following changes, as stated in the reasoning of the first instance court’s decision, pursuant to Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

B. Parts used for repair;

1) On March 3, 2012, the first instance court’s notice of enforcement (hereinafter “this case’s notice”) was issued, and “the enforcement notice (hereinafter “instant notice”) was issued (However, the output data (Evidence A No. 14-1) recorded on the website of the Jeju Special Self-Governing Province was written in accordance with the period from March 5, 2012 to February 6, 2017. However, on September 4, 2012, the instant notice was written in the Official Gazette (Evidence No. 38) of Jeju Special Self-Governing Province (Evidence No. 39) as of September 5, 2012 and the Jeju Special Self-Governing Province’s newsletter (Evidence No. 39) as of September 5, 2012, the period of construction of the instant port facility was written in the official announcement as the completion date of construction from March 5, 2012 to February 6, 2012).”

2) Parts 7, 6, and 7 of the first instance judgment are as follows.

The instant public notice and the second public notice were made after the commencement of the instant public notice and they were recorded retroactively as the date before the instant public notice and the second public notice were made, and they were mistakenly recorded in the Official Gazette on February 26, 2012 so that interested parties, including the Plaintiffs, including the Plaintiffs can not accurately know the construction period. Therefore, the instant public notice and the second public notice are in violation of Article 9(6) and the main sentence of Article 10(1) of the Harbor Act, and are in itself against each legislative intent of the Environmental Impact Assessment Act, which provides that no construction of the instant public project may be conducted until the consultation procedure on the implementation plan and the second public notice is completed.

3) The 7 pages 12 to 18 of the first instance judgment are as follows.

According to Article 12 subparag. 1, Article 30(1)1, and Article 38(3) of the Public Waters Management Act and Article 28 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), in order to obtain a permit to occupy and use public waters and a license for reclamation, the consent of the relevant right holder must be obtained, and in order to obtain an approval of an implementation plan for reclamation, the relevant right holder must obtain prior consent to the commencement of construction from the relevant right holder or to compensate or install facilities under the Public Waters Management Act. In formulating an urban/Gun management plan, the opinion of the relevant residents and the relevant local council is required. However, even though the defendant obtained consent from the plaintiffs or did not install compensation or facilities under the Public Waters Management Act and did not hear the opinions of residents and the Jeju Special Self-Governing Province Council, the provisions on authorization and permission under Article 85(1)3 and 5 of the Harbor Act should not be applicable.”

4) Part 9 to 12 of the first instance judgment are as follows.

Article 9 (6) and the main text of Article 10 (1) of the Harbor Act provide that prior to the commencement of a harbor project, the implementation announcement of the harbor project and the announcement of the implementation plan of the harbor project shall be prior to the commencement of the harbor project. Unlike the fact that the Defendant had already commenced the harbor project of March 5, 2012 prior to the date of the public announcement of this case and the second public announcement, it cannot be said that the commencement of the construction of the harbor project of this case, which occurred prior to the public announcement of this case and the second public announcement, is unlawful until the second public announcement of this case and the second public announcement after the commencement of the construction of the construction of this case, which is a factual act, in light of the legislative intent of the Land Compensation Act and the Environmental Impact Assessment Act alleged by the Plaintiffs. Furthermore, even if the Defendant’s public announcement of this case was omitted on February 6, 2017, the Plaintiffs’ public announcement of this case’s error or error cannot be deemed to have already been made even before the commencement of the construction of the construction of this case.

5) The 9th instance court's 14th to 10th court's 11th court's decision are as follows.

In full view of the purport of evidence No. 3-1, the defendant sent a public notice to the head of Jeju Special Self-Governing Province and the Jeju City Mayor with authority to modify the Urban/Gun management plan within Jeju Special Self-Governing Province on September 23, 2011, which is called "consultation on the determination of the urban management plan following the implementation of the adjacent port construction project" and sent opinions to the head of Jeju Special Self-Governing Province on September 29, 201 and October 7, 201. The head of Jeju Special Self-Governing Province and the head of Jeju Special Self-Governing Province in charge of the matters concerning the establishment of the harbor construction project plan concerning the instant construction project and the designation and management of the public waters within Jeju Special Self-Governing Province cannot be seen as being in charge of the change of the construction price No. 1 to the extent that the defendant sent the public notice to the head of Jeju Special Self-Governing Province and the head of Jeju Special Self-Governing Province (see Articles 17(6)17, 29, and 38).

6) On 10 pages 13 through 11 of the first instance judgment, the following parts shall be followed.

The plaintiffs' assertion in this part is that the defendant's relevant authorization and permission under Article 85 (1) 3 and 5 of the Harbor Act in making the public notice of this case, i.e., determination of an urban or Gun management plan under Article 30 of the National Land Planning Act, ii) permission to occupy and use public waters under Article 8 of the Public Waters Management Act, iii a license to reclaim public waters under Article 28 of the Public Waters Management Act, iv) approval of an implementation plan to reclaim public waters under Article 38 of the Public Waters Management Act must satisfy the procedural and practical requirements prescribed in each individual Act, but in light of the interpretation of each Act and subordinate statute related to the effect of an authorization and permission agenda under the Harbor Act, such assertion is without merit, and the detailed reasons are as follows.

(A) Article 85(1)3 of the Harbor Act provides that an administrative agency shall be deemed to have received a decision on an urban/Gun management plan under Article 30 of the National Land Planning and Utilization Act with respect to the matters consulted with the head of the relevant administrative agency pursuant to Article 9(3) of the same Act in cases where the fact of implementation of a harbor project is publicly announced pursuant to Article 9(6) of the same Act. Accordingly, if an implementation notice is made pursuant to the Harbor Act, it is not necessary to separately determine an urban/Gun management plan under the National Land Planning and Utilization Act, and it does not require the procedure under Article 28 of the Urban Planning Act required for the decision on the urban/Gun management plan (see Supreme Court Decision 2008Du686, Apr. 23, 2009). Accordingly, even if the Defendant did not go through the procedure under Article 28 of the Urban Planning Act prior to the public notice

(B) As to a reclamation license under Article 28 of the Public Waters Management Act deemed to be the public announcement of the instant case pursuant to Article 85(1)5 of the Harbor Act, Article 30(1) of the Public Waters Management Act provides that “Where there is a person who has a right to the public waters in the vicinity of the predetermined area to be reclaimed and the area likely to be damaged due to reclamation (hereinafter referred to as “person holding a right to reclamation of public waters”), the reclamation license agency shall not, in principle, grant a reclamation license.” However, even if there is a person holding a right to reclamation of public waters, the proviso of the same Article provides that “where there is a person holding a right to reclamation of public waters, the reclamation license agency shall not grant an exceptional permit for reclamation and it is deemed that the reclamation-related right holder agrees to reclamation and the reclamation is deemed necessary to fully consider changes in the environment and ecosystem (Article 1)” (Article 30(1)1 of the Public Waters Management Act provides that “Any land for which the Defendant is legally entitled to expropriate or use under the Public Waters Management Act or the Public Waters Management Act.”

(C) As seen in the above (B), insofar as it is deemed that the effect of the reclamation license deemed to have been legally effective by the instant public notice, the Defendant does not need to obtain a separate permit to occupy and use public waters in relation to the construction of the instant harbor facilities pursuant to the proviso of Article 8(1) of the Public Waters Management Act, and accordingly, the requirements under Article 12 subparag. 1 of the Public Waters Management Act concerning the standards for the occupancy and use permit of public waters need not be separately

(D) In relation to the approval of implementation plan for reclamation under Article 38 of the Public Waters Management Act, which is deemed to be the public announcement of the instant case pursuant to Article 85(1)5 of the Harbor Act, Article 38(3) of the Public Waters Management Act provides that “a reclamation licensee shall apply for the approval of implementation plan for reclamation after obtaining the consent on the commencement of construction from the right holder related to the reclamation of public waters or the compensation or installation of facilities under Article 32.” Based on the above provision, the Plaintiffs asserted to the effect that the approval of implementation plan for reclamation deemed to be unlawful on the grounds that the Defendant did not obtain the consent on the commencement of construction from the right holder related to the reclamation of public waters, including the Plaintiffs or did not install compensation

However, the statutory construction should be carried out in the direction of finding concrete feasibility within the extent that does not undermine legal stability. For this purpose, the statutory construction should, as far as possible, be faithfully interpreted in the ordinary meaning of the language and text used in the relevant statute. Furthermore, the statutory construction method which takes into account the legislative intent and purpose of the relevant statute, the history of its enactment and amendment, harmony with the entire legal order, and relations with other Acts and subordinate statutes should meet the request for the interpretation of the aforementioned reasonable Acts and subordinate statutes (see, e.g., Supreme Court Decision 2011Du19239, Jul. 5, 2012). In this case where the notice of this case takes the position that the relevant authorization and permission, including the approval of the implementation plan for the harbor construction of this case, should be strictly applied to the requirements of Article 38(3) of the Public Waters Management Act on the approval of the implementation plan for the implementation of the harbor construction, as alleged by the plaintiffs, may result in conflict and conflict between the interpretation and application of each provision of the Harbor Act and the Public Waters Management Act.

In other words, Article 38(3) of the Public Waters Management Act provides that "a reclamation licensee shall obtain consent to the commencement of construction works from the right holder related to the reclamation of public waters" and that "a reclamation licensee shall compensate or install facilities under the Public Waters Management Act" can be granted approval by an administrative agency. If a project operator fails to obtain consent to the commencement of construction works from the right holder related to the reclamation of public waters as in this case, there is no way to obtain implementation plan from an administrative agency except for compensation or installation of facilities under the Public Waters Management Act. The first stage of compensation or installation of facilities is the same as the public announcement of the implementation plan under Article 77(2) of the Harbor Act, and the project operator is entitled to the right to expropriate or use the land, etc. necessary for the implementation of the harbor project, and the implementation of the implementation plan should be determined by the public announcement of the implementation plan under Article 85 of the Harbor Act at the time of the implementation of the harbor project. It is more specific that the implementation of the implementation plan should be made 20 days before the implementation date of the harbor project.

In addition to the interpretation of the relevant Acts and subordinate statutes related to the second public notice, it is reasonable to view that the effect of the implementation plan of reclamation itself takes place if the pertinent authorization and permission is deemed a package by the public notice of execution of harbor works pursuant to Article 85 of the Harbor Act, notwithstanding Article 38(3) of the Public Waters Management Act, even if the consent to the commencement of construction works or the construction of facilities is not made without compensation or installation under the Public Waters Management Act, on the ground that the purpose of the establishment of the legal fiction system for authorization and permission as referred to in Article 85(1) of the Harbor Act is to protect the rights and interests of the public by having the competent administrative agency in relation to the legal fiction of authorization and permission by simplification of the windows and simplification of the procedures, and saving the cost and time. Accordingly, the second public notice of this case and the second public notice of this case cannot be deemed unlawful solely on the ground that the compensation or installation of facilities related to the construction of the harbor facilities of this case has not been performed against the right holder, including the Plaintiffs at the time of the public notice of this case.

2. Conclusion

Therefore, the judgment of the court of first instance is justified, and all appeals by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Sung Pung-sung (Presiding Judge)