(영문) 울산지방법원 2019.8.22.선고 2018구합7789 판결

1. The Defendant’s disposition of permission to occupy and use public waters against the head of ○○-dong fishing village fraternity B on September 21, 2018 is revoked.

2. The costs of lawsuit are assessed against the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On April 4, 2014, the Plaintiff purchased each land and building listed in the separate sheet No. 1 from all owners, including C, and completed the registration of ownership transfer on June 3, 2014. Each land listed in the separate sheet No. 1 and paragraphs 3 is adjacent to the cadastral map No. 2 (the form surrounding the land listed in paragraph 3, which is the site of the road, is the form surrounding the land listed in paragraph 1, which is the site of which; hereinafter referred to as “the instant land”).

B. Meanwhile, from around 207 to around 207, before the Plaintiff purchased the instant land and the buildings listed in Section 2 of Schedule 1 (hereinafter referred to as the “instant building”), part of the Ulsan-dong, Ulsan-dong, ○○○○ 846 - 9 Do 602 (hereinafter referred to as the “instant road”) and part of the public waters, which had been a branch line of the instant road, in the shape of a container-type female room (refer to evidence No. 5, No. 1-3). The above container-type female room was located as a fluor of the instant building, and there was no other force to prevent the view of the breakwater and the sea inside the instant building from view of the breakwater and the sea.

다 . 피고는 2018 . 8 . 경 ' ■■항 나잠탈의장 신축공사 ' 를 계약금액 6 , 580만 원에 발주 하여 , 2018 . 8 . 29 . 부터 2018 . 10 . 말경까지 이 사건 도로를 지선으로 한 이 사건 건물 앞 공유수면 122 . 4㎡ ( 이하 ' 이 사건 공유수면 ' 이라 한다 ) 지상에 해녀탈의장인 ' ■■해 녀의 집 ' 을 신축하였다 ( 이하 ' 이 사건 해녀탈의장 ' 이라고 한다 ) . 이 사건 해녀탈의장은 위 컨테이너형 해녀탈의실보다 좀 더 이 사건 건물의 전면부로 옮겨 지어졌고 ( 을 제1 호증의 2 참조 ) , 그로 인하여 이 사건 건물 내부에서 방파제와 바다를 조망함에 있어 이 사건 해녀탈의장이 시야를 가로막고 있다 .

라 . 피고는 2018 . 9 . 21 . 공유수면 관리 및 매립에 관한 법률 ( 이하 ' 공유수면법 ' 이라 고 한다 ) 제8조 제1항 제1호에 근거하여 [ 피고가 2018 . 9 . 27 . 이 사건 처분에 대하여 한 고시 ( 울산광역시 동구 고시 제2018 - 75호 ' 공유수면 점용 · 사용 허가 및 변경허가취 소 사항 고시 ' , 갑 제11호증 ) 에는 이 사건 처분의 근거 법령이 정확하게 적시되어 있지 않으나 , 이 사건 처분서인 공유수면 점용 · 사용허가증 ( 을 제1호증의 4 ) 에는 처분의 근 거 법령이 ' 공유수면법 제8조 제1항 제1호 ' 로 정확하게 명시되어 있다 ] , ○○동 어촌계 장 B에게 ' ■■항 해녀탈의장 설치 운영 ' 을 목적으로 하여 2018 . 9 . 21 . 부터 2019 . 9 . 20 . 까지 1년간 이 사건 공유수면에 대한 공유수면 점용 및 사용을 허가하는 처분을 하 였다 ( 이하 ' 이 사건 처분 ' 이라고 한다 ) .

[Grounds for Recognition] Class A 1 to 9, 13, and 18 Evidence, Evidence No. 1 (with a number)

written in each statement, including branch numbers, hereinafter the same shall apply), the purport of the whole pleading;

2. Judgment on the Defendant’s defense prior to the merits

A. Summary of the defendant's assertion

The Plaintiff asserts that there is a procedural defect in the disposition of this case, and sought revocation of the disposition of this case. Accordingly, the Defendant asserts that the Plaintiff did not have standing to sue the disposition of this case since the Plaintiff did not fall under the “person who has the right to occupy and use public waters,” as prescribed in Article 12 of the Public Waters Act, and does not have a position of being infringed on individual, direct, and specific interests due to the disposition of this case.

(b) Relevant statutes;

Attached Form 3 is as shown in the relevant Acts and subordinate statutes.

C. Determination

1) Relevant legal principles

Even if a third party is not the direct counter-party to an administrative disposition, if the legal interests protected by the administrative disposition have been infringed, the party is entitled to obtain a decision of propriety thereof by filing an administrative lawsuit seeking the revocation of the disposition or the confirmation of invalidity thereof. Here, the legal interests referred to in this context refer to the individual, direct, and Gu physical interests protected by the relevant administrative disposition and relevant laws and regulations (see Supreme Court en banc Decision 2006Du330, Mar. 16, 2006, etc.).

Meanwhile, the Public Waters Act is enacted for the purpose of promoting the public interest and contributing to improving the lives of the people by managing public waters continuously so that they can use the public waters through environment-friendly reclamation. Article 12 of the Act provides that “The management agency of public waters may not grant permission to a person who has the right to use and use the adjacent public waters at the time of granting permission to occupy and use the public waters (hereinafter referred to as “person who has the right to occupancy and use the public waters”), which is likely to cause damage to the public waters at the time of using the adjacent public waters (see Article 1).” Article 12 of the Enforcement Decree of the Public Waters Act provides that “The person who has the right to use and use the adjacent public waters may not obtain permission to use and use the adjacent public waters from the owner of the land at the time of using and using the adjacent public waters (see Article 12(1) of the Public Waters Act and Article 12(2) of the Enforcement Decree of the Public Waters Act provides that “The person who has the right to use and use the adjacent public waters may not be subject to the aforementioned provision:

2) Determination

In full view of the following circumstances, comprehensively taking into account the aforementioned evidence and evidence Nos. 14 and 15’s overall purport of each film and pleading, the Plaintiff constitutes “the owner, etc. of adjoining land for the public waters of this case who is likely to suffer damage, such as being unable to properly use the adjoining land due to the instant disposition,” and thus, standing to sue regarding the instant disposition is recognized. Accordingly, the Defendant’s defense prior to the merits is without merit.

A) In light of the “the prior meaning of the adjoining area” or “the contact is adjoining to or adjacent to the instant land.” However, the instant land and the instant public waters are not directly abutting on, the instant land and the instant public waters, but the instant land and the instant building are at the vicinity of the instant road, which is a narrow road. As such, the instant land and the instant building are at the location of the adjoining one another.

B) On April 4, 2014, the Plaintiff purchased the instant land and buildings in total at KRW 1.22 billion, and completed the registration of ownership transfer on June 3, 2014. At the time, the Plaintiff had had a sand position specialty store on the first floor of the instant building and a main store on the second floor.

C) If it is objectively recognized that the owner of a certain piece of land or a building has the value of a view that he had previously enjoyed as a single living benefit, such benefit of view can, in principle, be legally protected only when it is recognized that the owner or possessor of the building has a special value in view of the outside from the place, and that such benefit of view has the importance to the extent that the benefit of view that the owner or possessor of the building has to be approved as the benefit of its own under social norms, such as the case where the building was constructed for an important purpose to enjoy such benefit of view from the place (see Supreme Court Decision 2003Da64602, Sept. 13, 2004, etc.). The building of this case was constructed in the direction of viewing the breakwater and the sea, and that there was no significant obstacle to the plaintiff's use of the view from the first or second floor of the building of this case before the removal of the building of this case.

D) In view of whether the Plaintiff is likely to suffer damage due to the instant disposition, ① the Plaintiff purchased the instant land and buildings and obtained rent from others by restaurant, etc.; ② the Plaintiff plays an important role in the view of the view and landscape of the instant land and buildings when the Plaintiff gains rent from the instant land and buildings; ③ the Plaintiff was running a rental business by purchasing the instant land and buildings from around 2014, before the instant sloping site is installed; ④ the Plaintiff was installed at the first floor of the instant building, and the view and landscape of the instant land and buildings were considerably difficult to view the sea on the side of the instant building; ② the Plaintiff’s disposal by purchasing the instant land and buildings from around 2014, before the instant sloping site is installed, and in view of the premise that the Plaintiff could not exercise its view and landscape near the roof of the instant building, ⑤ the Plaintiff’s disposal of the instant land and buildings that could not interfere with the Plaintiff’s use of the instant land and the instant building.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Since the Plaintiff’s act falls under “the right holder related to the occupation and use of public waters” as stipulated in Article 12 of the Public Waters Act, the Defendant, prior to the instant disposition, made the instant disposition without the Plaintiff’s consent. The instant disposition was unlawful since procedural defects exist.

2) The previous container-type female room was located in the original place for more than 10 years, and the plaintiff believed that the above container-type female room was in the same place, and the plaintiff was newly constructed and did not entirely predict that the view of the building of this case will be achieved, and the previous disposition of this case was unlawful in violation of the principle of trust protection.

3) The instant disposition violates the principle of proportionality and infringes on the Plaintiff’s right to view and thus is unlawful by abusing discretion.

(b) Relevant statutes;

Attached Form 3 is as shown in the relevant Acts and subordinate statutes.

C. Determination

1) Whether procedural defects exist

As determined in the above Paragraph 2, the Plaintiff is the owner or possessor of adjacent land and artificial structures under Article 12 (1) 6 of the Enforcement Decree of the Public Waters Act, and falls under the “holder of the right to occupancy and use public waters” under the main sentence of Article 12 of the Public Waters Act. Therefore, the Defendant is prohibited from taking the instant disposition unless the Plaintiff’s consent is obtained. However, according to the evidence No. 10, the Plaintiff merely expressed a clear objection to the instant disposition before the instant disposition, and there is a defect in the procedure, because the instant disposition was conducted without going through the Plaintiff’s consent procedure under Article 12 of the Public Waters Act. This part of the Plaintiff’s assertion is reasonable.

2) Whether the principle of protection of trust (legal principle of invalidation) is violated

The principle of forfeiture or invalidation is derived from the principles of good faith, which are the general principles of law, and therefore, it cannot be ruled out that management relations as well as power relations should be applied to public law relations. However, since the right holder did not exercise his right over a long-term period of time despite the right holder had an opportunity to exercise his right, the other party, who is the obligor, is not obliged to exercise his right when it comes to be confirmed that he would not exercise his right over a long-term period of time, or would not exercise his right (see Supreme Court Decision 87-915, Apr. 27, 198, etc.). As to this case, it means that the exercise of his right would not be permitted when it would result in a violation of the good faith principle (see Supreme Court Decision 87-915, Apr. 27, 198, etc.). It is difficult to view that the Defendant had no longer granted the Plaintiff’s trust in the construction of the building of this case for about about about about about 10 years.

3) Whether the discretionary authority is deviates or abused

In full view of the facts acknowledged earlier and the evidence and the purport of the entire pleadings as seen earlier, the following circumstances are revealed, namely, ① the establishment of the sea sloping hall of this case is to improve the working environment of the sea sloping fishermen engaged in traditional methods of fishing for their livelihood in an poor environment and to promote their welfare, and the legitimacy and necessity of such installation is recognized, but there is a need or justification to have the sea sloping hall of this case necessarily on the site where the head of the sea sloping hall of this case is installed. It is difficult to see that the Defendant could not infringe the view interest of the building of this case, such as the space where the previous sea sloping room was located or less infringed, and ③ the Plaintiff appears to have been able to bear considerable property loss due to the construction of the sea sloping hall of this case, and ④ the Plaintiff’s efforts to secure a balance in the site of this case without having expressed its opinion to the Defendant before such disposition.

4) Sub-decisions

Therefore, the instant disposition should be revoked as it violates legitimate procedures and is made by abusing and abusing discretionary power. Ultimately, the Plaintiff’s assertion is reasonable.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges

Judges Gangwon-do;

Judges Lee Jae-py

Judge Lee Jong-soo

Site of separate sheet

[Attachment 1]

List

1. Ulsan-dong ○○○-dong 528 - 5 208

2. Ground stated in paragraph (1).

General restaurants with 5 floors of reinforced concrete structure (resided concrete roof)

1 to four stories, each of 103 square meters 77 square meters;

5 square meters for 0 square meters;

3. Ulsan-dong ○○○○-dong 528 - 7 72 meters end.

[Attachment 2]

cadastral map

A person shall be appointed.

[Attachment 3]

Relevant statutes

▣ 공유수면 관리 및 매립에 관한 법률

Article 8 (Permission to Occupy and Use Public Waters) (1) A person who intends to engage in any of the following acts shall obtain permission to occupy and use public waters (hereinafter referred to as "permission to occupy and use") from the management agency of public waters, as prescribed by Presidential Decree: Provided, That this shall not apply where he/she intends to occupy and use public waters for taking emergency measures under Article 37 of the Framework Act on the Search, Rescue, etc. in Waters, or where a person who has obtained a reclamation license under Article 28 intends to occupy and use or private use the relevant public waters within the scope of the purpose of obtaining the reclamation license:

1. A wharf, a breakwater, a bridge, a floodgate, a new and renewable energy facility on public waters (the development of new and renewable energy);

· The term "new and renewable energy facilities" means new and renewable energy facilities under subparagraph 3 of Article 2 of the Act on the Promotion of Use and Diffusion; hereafter in this Chapter, the same shall apply.

The same shall apply) a building (a building under Article 2(1)2 of the Building Act, which creates land on the public waters;

Newly constructed or newly built other artificial structures; hereinafter the same shall apply in this Chapter) or other artificial structures

Remodelling, extending, altering, or removing;

(2) When the management agency of public waters grants permission for new construction, reconstruction and extension of a building referred to in paragraph (1) 1, it shall grant permission only for buildings prescribed by Presidential Decree.

(6) When the management agency of public waters grants an occupancy or use permit or a permit for change referred to in paragraph (4), it shall publicly announce the details thereof, as prescribed by Presidential Decree.

Article 12 (Standards for Permission, etc. for Occupancy or Use of Public Waters) Where a person has a right likely to be damaged due to such permission, consultation or approval, which is prescribed by Presidential Decree (hereinafter referred to as "person holding a right to occupancy or use of public waters") in granting permission for occupancy or use, or holding consultation or approval for occupancy or use pursuant to Articles 8 and 10, the management agency of public waters shall not grant such permission, consultation or approval: Provided, That the foregoing shall not apply to any of the following cases:

1. Where a right holder related to occupancy or use of public waters consents to the occupancy or use of the relevant public waters;

2. Public works prescribed by Presidential Decree, such as national defense or the prevention of natural disasters, by the State or local governments;

in the event of occupancy or use;

▣ 공유수면 관리 및 매립에 관한 법률 시행령

Article 6 (Scope, etc. of Buildings) (1) "Buildings prescribed by Presidential Decree" in Article 8 (2) of the Act means buildings falling under any of the following subparagraphs among buildings installed under or floating on any public waters or below the public waters:

1. A building necessary for the operation of a harbor and fishery harbor;

(2) The management agency of public waters shall review the following matters when it intends to permit occupancy and use for the new construction, reconstruction and extension of a building under Article 8 (2) of the Act:

4. Matters concerning the following matters according to the characteristics of the relevant building:

(a) Appropriateness of the location and arrangement of buildings;

Article 9 (Public Notice) The public notice of occupancy or use permission or change permission under Article 8 (6) of the Act shall include the following matters:

1. Permission number and the date of permission;

2. The purpose of occupation and use;

3. Place of occupation and use;

4. The area and period of occupancy and use;

5. The name and address of a person who has obtained the occupancy or use permit (in cases of a corporation, referring to the name and address of the corporation and the name and address of its representative);

Article 12 (Right Holders, etc.) (1) "Person who has a right prescribed by Presidential Decree" in the main sentence of Article 12 of the Act means any of the following persons:

6. An owner or occupant of adjacent land or artificial structures;

(4) The management agency of public waters shall examine the following standards in determining as to whether a right likely to be damaged pursuant to Article 12 of the Act:

1. The object of the right by a right holder referred to in any subparagraph of paragraph (1) due to the permission for occupancy or use, consultation, or approval of the relevant occupancy or use;

according to whether it is impossible to use public waters or adjacent land;

2. If a person does not take measures the same as the installation of facilities that prevent damage, the public waters or adjoining soil.

whether or not it can not be properly used.

▣ 공유수면 관리 및 매립에 관한 법률 시행규칙

Article 4 (Application, etc. for Permission to Occupy and Use Public Waters) (1) An application for permission to occupy and use public waters under Article 4 of the Decree (hereinafter referred to as "permission to occupy and use and use public waters") shall be filed in accordance with attached Form 4.

(2) An application for permission under paragraph (1) (including an application form in electronic form) shall be accompanied by the following documents:

section 23(3).

5. A written consent of the right holder related to the occupancy and use of public waters (a person falling under any subparagraph of Article 12 (1) of the Decree);

shall be limited to the case where there is a right holder). Finally

참조조문

-건축법 제2조 제1항 제2호

-공유수면 관리 및 매립에 관한 법률

-공유수면 관리 및 매립에 관한 법률 제8조 제1항 제1호

-공유수면 관리 및 매립에 관한 법률 제12조

-공유수면 관리 및 매립에 관한 법률 시행규칙

-공유수면 관리 및 매립에 관한 법률 시행령

-공유수면 관리 및 매립에 관한 법률 시행령 제12조 제1항

-공유수면 관리 및 매립에 관한 법률 시행령 제12조 제1항 제6호

-공유수면 관리 및 매립에 관한 법률 시행령 제12조 제4항

참조판례