[1] The requirements to constitute “the area of land which is the site of river appurtenances” as provided by Article 2(1)2(b) of the former River Act or “the area excluded” as provided by Article 2(1)2(c) of the same Act, which is the land which is the site of the bank or the area excluded from the river area, which is a river area

[2] Whether a bank established by the Minister of Construction and Transportation as a river work under Article 17 of the former River Act constitutes a river management agency or a person who has obtained permission or delegation thereof (affirmative), and whether a river work may be deemed a river work under Article 17 of the former River Act, even if the Minister of Construction and Transportation did not give notice under Article 12(1) and (2) of the former Enforcement Decree of the River Act in the course of performing a river work on his/her behalf (affirmative)

[3] The requirements for the river work performed by the Minister of Construction and Transportation for the section of a river to which the aforesaid provisions shall apply mutatis mutandis to the river work under Article 17 of the former River Act

[1] Article 2 (1) 2 (b) of the former River Act (amended by Act No. 3406 of March 31, 1981), Article 2 (1) 2 (b) (see current Article 2 subparagraph 2, Article 10 (1) 1, and 2), Article 10 (3) (see current Article 2 subparagraph 2, Article 10 (1) 1, and 2), and Article 3 (see current Article 2 subparagraph 3) of the former River Act) / [2] Article 17 (see current Article 28) of the former River Act (amended by Act No. 3406 of March 31, 1981), Article 12 (1) (2), and (2) (see current Article 28 (1), Article 10 (2), and Article 28 (1) 1, and (3) (see current Article 28 (1) of the Enforcement Decree of the River Act) of the former Enforcement Decree of the River Act (amended by Presidential Decree No. 10650, Dec. 21, 2198 (see current Article 198 (2) of the River Act)

[1] Supreme Court Decision 91Da10046 delivered on June 28, 1991 (Gong1991, 2032) Supreme Court Decision 92Nu16584 delivered on May 25, 1993 (Gong1993Ha, 1900)

Plaintiff (Law Firm branch, Attorneys Lee Jae-o et al., Counsel for plaintiff-appellant)

Gyeonggi-do (Government Law Firm Corporation, Attorneys Choi financial et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na51785 decided December 21, 2012

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

The grounds of appeal are examined.

1. In full view of the admitted evidence, the lower court acknowledged the following facts: (a) the Plaintiff completed the registration of ownership transfer on the instant land on July 7, 2001; and (b) the Defendant occupied the instant land from around 1977, and determined that the Defendant was liable to return unjust enrichment from the possession of the instant land to the Plaintiff, barring special circumstances.

Furthermore, the court below rejected the defendant's assertion that the land in this case was not owned by the river management agency because it falls under the river area of the Seosan river where the land in this case is applied mutatis mutandis. ① The Gyeonggi-do Governor designated and publicly announced the Seosan river near the land in this case on March 1, 1965; ② the Seosan river was flooded around 1970; ② the Seoul Regional Land Management Office under the Minister of Construction and Transportation started the Seosan River Repair work from around 1972 to the 1976 and completed the construction work on the remainder of the land including this case (hereinafter "the river construction work in this case"); ③ the land in this case became the site or the land excluded from the bank construction work in this case; ② the Minister of Construction and Transportation did not recognize that the land in this case was incorporated into the river area in this case on behalf of the defendant in this case since there was no evidence to acknowledge that the river construction work in this case was implemented at the time of the river construction work in this case.

2. However, we cannot accept the judgment of the court below for the following reasons.

A. According to the River Act enacted by Act No. 892 on December 30, 1961 and enforced on January 1, 1962, a river area to which the provisions apply mutatis mutandis is designated and publicly announced, only the section of a river, which is a subordinate area of a river, shall be determined even if the name and the section are designated and publicly announced. A river area which is a crossing area of a river, is determined and publicly announced by a river management agency pursuant to Article 12 of the River Act. The entire Act was amended by Act No. 2292 on January 19, 1971 (amended by Act No. 3406 on March 31, 1981; hereinafter the same shall apply) is naturally designated by the river management agency as a river area under Article 2 (1) 2 (a) through (c) through (c) of the Act, and a river area under the above provisions shall be designated by the river management agency under Article 2 (3) of the Act as a river area under Article 97 (c). 205 (see, 200). 97 (c).

In order to constitute “the area of land which is the site of river appurtenances” as stipulated in Article 2(1)2(b) of the former River Act or “the area excluded” as stipulated in Article 2(1)2(c) of the same Act, where one of the river appurtenances (Article 2(1)3 of the same Act) is installed by the river management agency or by the person permitted or delegated by the river management agency or by any person other than the river management agency, the river management agency shall obtain the consent of the installer to manage it as river appurtenances (see, e.g., Supreme Court Decisions 91Da1046, Jun. 28, 1991; 92Nu16584, May 25, 1993).

Meanwhile, Article 17 of the former River Act provides that the Minister of Construction and Transportation may implement river works, if deemed necessary, by the Do governor who is a river management agency. Article 12 of the former Enforcement Decree of the River Act (amended by Presidential Decree No. 10650, Dec. 21, 1981; hereinafter “former Enforcement Decree”) provides that the Minister of Construction and Transportation shall notify the Do governor of the name of the river, the section of the construction, the outline of the construction, and the scheduled date of commencement and completion of the construction (paragraph (1)), and that the Minister shall notify the Do governor of the fact when the construction is completed (paragraph (2)). Since the river works implemented pursuant to Article 17 of the former River Act by the Minister of Construction and Transportation are performed by the river management agency, the bank installed as the river management agency or the authorized person thereof shall be deemed to have been established. In addition, if the Minister of Construction and Transportation executes any river works by proxy, the Minister shall not be deemed to have notified the river management agency of the implementation of such works by proxy.

Article 12(3) of the former Enforcement Decree provides that the scope of the construction by the Minister of Construction and Transportation on his/her behalf pursuant to the provisions of Article 17 of the former River Act shall be “construction work of a river directly in the section of a local river or a quasi-river (limited to a river to which it is deemed necessary to be implemented in a lump sum with a river or a local river, or a river to which it is necessary in accordance with a national development plan).” According to the above provisions, the said construction work may be deemed as a river work in accordance with Article 17 of the former River Act, where it is necessary for the Minister of Construction and Transportation to implement a river work in the form of a river or a local river to which it is directly related

B. Examining the facts acknowledged by the court below in light of the legal principles as seen earlier, it cannot be deemed that the land of this case belongs to the river area in Seocheoncheon River area around the time of the designation and public notice on March 1, 1965 merely because Seosan river was designated and public notice was given mutatis mutandis. However, if the river work executed by the Seoul Regional Land Management Agency around 1977 by the Minister of Construction and Transportation falls under the case where the river work in this case was performed by the Do governor pursuant to Article 17 of the former River Act, the bank installed on the land of this case shall be deemed to have been established by the river management agency or the person permitted or delegated by him, and the land of this case, which is the site or excluded from the bank, falls under the river area in this case by applying mutatis mutandis the river construction work of this case. Even if the Minister of Construction and Transportation or the Seoul Regional Land Management Agency did not notify the Defendant, which is the river management agency at the time of the river construction work of this case, it cannot be deemed that the river construction work of this case does not fall

Therefore, in light of the above legal principles, the Minister of Construction and Transportation may not determine whether the land in this case belongs to the river area of the Seosan, which is the river to which this case is applied mutatis mutandis, unless the process, procedure, and ground statute of execution of the river work in this case, the construction work implemented en bloc with the river work in this case, or the national development plan related to the river work in this case and its contents, etc. are confirmed. Therefore, it cannot be determined as to whether the plaintiff's claim for return of unjust enrichment is acknowledged on the premise that the defendant occupied the land

Nevertheless, the lower court determined that the instant river work cannot be deemed a construction work performed by the Minister of Construction and Transportation on the ground that there is no evidence to acknowledge that the Minister of Construction and Transportation had given notice as prescribed by the former Enforcement Decree while executing the instant river work. In so doing, the lower court erred by misapprehending the legal doctrine on the vicarious performance of river work and the river area as prescribed by the former River Act, etc.,

3. Therefore, 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 Yong-deok (Presiding Justice)