Sil Jin-si (Law Firm Busan, Attorneys Na-soo et al., Counsel for defendant-appellant)

Defendant 1 and one other

January 15, 2016

Daejeon District Court Decision 2015dan50899 Decided April 29, 2015

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendants shall withdraw from the building indicated in the attached list.

2. Purport of appeal

The judgment of the first instance is revoked. All of the Plaintiff’s claims against the Defendants are dismissed.

1. Basic facts

A. On February 28, 2007, the Plaintiff approved a business plan to create a tourist destination in distress (No. 2007-40 notice of Chungcheongnam-do) in the Dagjin-gun (Seoul Special Metropolitan City, January 1, 2012), a Do governor of Chungcheongnam-do, and approved a replotting plan on May 13, 2008, and implemented a development project for tourist destinations in distress by approving the replotting plan on May 13, 2008.

B. Defendant 1 filed an application for permission to occupy and use public waters with respect to 630 square meters of public waters (hereinafter “the public waters in this case”) among the land ( Address omitted) in the Sig-gun, the management agency of public waters under Article 4(2) of the Public Waters Management and Reclamation Act (hereinafter “Public Waters Act”) in order to cause the situation that a building without permission that he/she had resided in the area due to the difficult development project, and submitted a written statement on July 3, 2008, stating that “the construction of a building in the area where the project period is completed or before the completion of the project period is completed shall be immediately relocated, and the existing temporary building will be removed and restored to its original state, and if it fails to comply with the compulsory disposition taken by the relevant administrative agency, no objection shall be raised.”

C. On August 8, 2008, the head of Jinjin-gun permitted Defendant 1 to occupy and use the public waters of this case for the period of permission as of August 7, 2010, and granted a temporary period of permission as the condition of permission prior to the completion of a development project for guidance, and attached the content that the period of permission should be restored to its original state upon completion of the project.

D. Defendant 1 newly constructed a building listed in the separate sheet (hereinafter “instant building”) on the public waters of this case and obtained approval for use from the head of Sinjin-gun on December 29, 2009, and completed registration of preservation of ownership on January 7, 2010.

E. The development project was completed on April 21, 2010 and completed infrastructure construction, including road, water supply facilities, and waste water treatment facilities, and landscaping construction. Around that time, electric facilities installed and made it possible for Defendant 1 to construct the project on the project site, including land substituted by Defendant 1.

F. Around July 2010, Defendant 1 applied for permission to change the term of occupation and use of the public waters of this case to the head of Jinjin-gun on a permanent basis. However, on August 9, 2010, Defendant 1 rejected Defendant 1’s above application on the ground that “A temporary permission was granted prior to the completion of a difficult map development project, and it is impossible to extend the period.”

G. Defendant 1, who is dissatisfied with the above disposition, filed an administrative appeal with the Chungcheongnam-do Administrative Appeals Commission on September 2010, but dismissed on December 8, 2010, and thereafter, dismissed the administrative litigation (201Guhap695) seeking the revocation of the above disposition filed with the Daejeon District Court, and was also dismissed on October 12, 2011, and the appeal against the said judgment (Seoul High Court Decision 2011Nu2093) and the final appeal (Supreme Court Decision 2012Du9369) were all dismissed.

H. Defendant 2, Sept. 24, 2012, received the registration of ownership transfer with respect to one half of the instant building from Defendant 1, and possessed the instant building along with Defendant 1.

I. From August 2010, the Plaintiff ordered Defendant 1 to restore the instant public waters over several occasions, but the Defendants did not remove the instant building until the date of closing the argument.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 10 (if there are additional numbers, including each number; hereinafter the same shall apply), images of Gap evidence 11 through 13, the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff, a local government managing the public waters of this case, may order the Defendants who newly built and possessed the building of this case on the ground of the public waters of this case to restore the building of this case to its original state, such as removal of the building of this case, and the Defendants failed to comply with this order. Thus, the Defendants may remove the building of this case from the building of this case under the Administrative Vicarious Execution Act. However, in order to remove the building of this case, the Defendants must withdraw from the building of this case under the premise. The above removal duty does not correspond to the alternative act duty subject to administrative vicarious execution, but is bound to secure the fulfillment of the duty by the direct compulsory execution method. Thus, the Defendants are obliged to withdraw the building of this case

3. Determination on the legitimacy of the instant lawsuit

ex officio, we examine the legitimacy of the instant lawsuit.

The Plaintiff is the Plaintiff’s duty to remove the instant building as a substitute act. If the Defendant fails to perform the above removal duty, the Plaintiff may remove the instant building by proxy. However, on the premise of the removal vicarious execution, the Plaintiff asserts that the enforcement title ordering the Defendants to withdraw is separately necessary and seek a removal from the instant building.

A person whose period of occupation and use for the public waters has expired shall remove artificial structures, installations, earth and rocks, and other things established on the public waters and restore the relevant public waters to their original state (Article 21(1)3 of the Public Waters Act); the management agency of public waters may order the restoration of the public waters to its original state in cases where a person obligated to restore to original state fails to take measures, etc. necessary for restitution under paragraph (1) (Article 21(2) of the Public Waters Act); and the management agency of public waters may take measures necessary for restitution in accordance with the Administrative Vicarious Execution Act (Article 21(3) of the Public Waters Act) if a person ordered to restore to original state fails to comply with such order (Article 21(3) of the Public Waters Act). The Plaintiff, a local government managing the public waters of this case, as alleged by the said person, may order the Defendants who occupy the building of this case by constructing the building on the public waters of this case, and may remove the building by proxy under the Administrative Vicarious Execution Act where the Defendants failed to comply

However, in a case where the procedure for administrative vicarious execution is recognized, it is not possible to seek the fulfillment of the obligation separately by means of civil procedure (see Supreme Court Decision 9Da18909, May 12, 2000, etc.). Since the obligation of the person who occupies the object to be removed in the procedure for administrative vicarious execution is an incidental obligation that is naturally accompanied by the removal obligation, which is a substitute act obligation, as a matter of course, the obligation to remove the object to be removed, as a substitute act, it cannot be deemed that the removal obligation is separate from the obligation to remove the object of administrative vicarious execution, and there is no separate title of execution that orders the occupant to withdraw, and as such, such procedure cannot be deemed unlawful merely because there is no separate title of execution that orders the occupant to withdraw, the plaintiff can take measures incidental to the removal of the building of this case against the defendants, who are the occupant of the building of this case. Thus, as long as the plaintiff can be excluded from the possession of the defendants as to the building of this case through the removal by civil procedure against the defendants

Therefore, the instant lawsuit is unlawful.

4. Conclusion

Therefore, the plaintiff's lawsuit of this case is dismissed as it is unlawful, and since the judgment of the court of first instance is unfair with a different conclusion, it is so revoked and it is so decided as per Disposition.

[Attachment]

Judges Song Jae-ho (Presiding Judge)