A. Whether a ground for retrial constitutes a ground for retrial where the Supreme Court rendered a judgment that modified the previous Supreme Court’s view on the interpretation and application of a law in a panel, which is not a

(b) A legitimate defendant in a lawsuit claiming compensation for losses under Article 2 of the Addenda of the River Act ( December 31, 1984);

(c) Whether Article 2 (1) of the Addenda of the River Act ( December 31, 1984) applies to the land that became a river area pursuant to a public notice by the management agency prior to enforcement of the River Act (Act No. 2292);

A. If the opinion expressed in the Supreme Court decision regarding who is liable to compensate for losses under Article 2 of the Addenda of the River Act (Act No. 3782 of Dec. 31, 1984) concerning the land incorporated into the river area of Han River which is a directly under the direct jurisdiction of the river changes the opinion expressed in the previous Supreme Court decision regarding who is the person liable to compensate for losses, the decision should have been made by the collegiate body of all Justices pursuant to Article 7(1)3 of the Court Organization Act. However, if the decision was rendered by a panel composed of four-thirds or less of all Justices, it constitutes the grounds for retrial under Article 422(1)1 of the Civil Procedure Act.

(b) [Majority Opinion]

A river management agency under the provisions of the River Act is the Minister of Construction and Transportation, but the management agency under the provisions of Article 2 of the Addenda to the amended Rivers Act (Act No. 3782, Jun. 12, 1986) becomes the Seoul Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor, the lawsuit of compensation for losses may be filed against the State under the River Act. Under the above compensation provisions, the lawsuit of compensation for losses may be filed against the local government to which the Seoul Special Metropolitan City Mayor, etc. belongs. In this case, the obligation of the State and local governments to compensate for losses is externally related to the joint and several liability

[Separate Opinion]

Even if Article 2 subparagraph 2 of the above compensation provision provides that the management agency of a river under its direct control is different from Article 11 of the River Act, it cannot be said that the local government has the liability to compensate with the State. The compensation obligor under Article 2 of the above Addenda to the above compensation provision concerning a directly-run river is the State under Article 11 of the River Act, and the Seoul Special Metropolitan City and other local governments cannot be the defendant in the civil procedure seeking the compensation.

C. In light of the history of the River Act and Article 2 (1) of the Addenda of the River Act (amended by December 31, 1984), in cases where Article 2 (1) of the Addenda of the River Act (amended by Act No. 2292 of Jan. 19, 1971) fall under Article 2 (1) 2 (a) of the River Act, if the River Act (amended by Act No. 2292 of Jan. 19, 1971) and Article 2 (1) 2 (a) of the Addenda of the same Act, it shall be deemed that the management agency shall compensate for land designated as a river area pursuant to Article 2 (1) 2 (a) of the River Act (amended by Act No. 3782 of Dec. 31, 1984). Accordingly, in addition, in cases where the River Act (amended by Act No. 2292 of Dec. 19, 1971), it does not apply to the river area as a separate provision for compensation.

A. Article 422(1)1 of the Civil Procedure Act, Article 7(1)3(b) of the Court Organization Act. Article 2(1)2 of the Addenda of the River Act (amended by Presidential Decree No. 11919, Jun. 12, 1986); Article 2(1)2 of the Addenda of the River Act (amended by Presidential Decree No. 11919, Dec. 31, 1984)

A. Supreme Court en banc Decision 81Da14420 decided Dec. 10, 1991 (amended by Supreme Court Decision 91Da62157 decided Mar. 22, 1994 (amended by Supreme Court Decision 93Da62157 decided Apr. 26, 1994)

[Judgment of the court below]

Seoul Metropolitan Government

Supreme Court Decision 94Da3407 Delivered on April 26, 1994

The request for retrial is dismissed.

The litigation costs for retrial shall be borne by the plaintiff.

1. As to the existence of a ground for retrial

As a result, the judgment subject to a compensation for losses under Article 2 (1) of the Addenda of the River Act (amended by Act No. 3782 of Dec. 31, 1984) shall be the defendant of the State or a local government, which is the subject of rights belonging to the management agency of a river. Article 11 of the River Act provides that "river shall be managed by the competent Do governor." According to the delegation of the proviso of Article 11 of the River Act, Article 9-2 of the Enforcement Decree of the River Act provides that "the river managed by the Do governor pursuant to the proviso of Article 11 of the Act shall be as shown in attached Table 2." According to the above (Attachment 2), Han River Act provides that "the river shall be in accordance with the proviso of attached Table 11 of the Act." Since only the section managed by the competent Do governor from the Hanyang-gun, Seoyang-gun, Seocheon-gun, the river area of this case (hereinafter referred to as "the river area of this case") shall be the plaintiff's land belonging to the river area of this case.

However, the Supreme Court Decision 91Da1420 delivered on December 10, 1991 rejected the plaintiff's appeal on the ground that the plaintiff's lawsuit for confirmation of the claim for compensation for damages against the Republic of Korea is unlawful on the ground that the plaintiff's lawsuit for confirmation of the claim for compensation for damages against the Republic of Korea is just, and that the plaintiff's appeal is dismissed on the ground that the Seoul Special Metropolitan City Mayor is the Seoul Special Metropolitan City Mayor Mayor and the Seoul Special Metropolitan City Mayor shall be the defendant with respect to the claim for compensation for damages, under Article 2 (1) and (5) of the Addenda of the River Act, and Article 2 (2) of the Addenda of the amended Enforcement Decree of the River Act (Act No. 3782) of the amended Enforcement Decree of the River Act (Act No. 11919, Jun. 12, 1986).

Therefore, the opinion expressed in the judgment subject to a retrial in this case should have been judged by a panel of two-thirds or more of all Justices in accordance with Article 7 (1) 3 of the Court Organization Act, since it is clear that the opinion expressed in the judgment subject to a retrial in this case was clearly decided by a panel of the two-thirds or more of all Justices on December 10, 191 as to the land incorporated into the river area of Han River which is a directly a river, and it constitutes a ground for retrial in Article 422 (1) 1 of the Civil Procedure Act, "if a person liable for compensation pursuant to Article 2 of the Addenda of the River Act does not constitute a court by law" (see, e.g., Supreme Court en banc Decision 81Da1420, Sept. 28, 1982).

2. In a lawsuit claiming compensation for losses under Article 2 of the Addenda to the amended Act, even if there exist such grounds for retrial in the instant judgment subject to a retrial, if there is a legitimate opinion expressed in the judgment subject to a retrial, or if the conclusion of the judgment subject to a retrial can be maintained on other grounds, the Plaintiff’s appeal is eventually without merit, and the request for retrial of this case should be dismissed under Article 430 of the Civil Procedure Act, and first, we examine

Article 2 (1) of the Addenda to the above amended Act provides that the management agency shall compensate for its loss with respect to the land incorporated into the river area under the same Article. Since the above provision does not define the concept of the management agency differently, it shall be deemed that the management agency of the river under Article 11 of the River Act refers to the management agency of the river. Therefore, since the management agency becomes the holder of the right belonging to the management agency of the river under Article 2 (1) of the Addenda to the above amended Act, in the case of a river directly owned by the Minister of Construction and Transportation, the State shall be the governor (including the Seoul Special Metropolitan City Mayor and the Metropolitan City Mayor) under Article 9-2 of the Enforcement Decree of the Act

On the other hand, Article 2 (5) of the Addenda to the above amended Act delegates the procedure of request for compensation, calculation date, compensation criteria to the Presidential Decree, and Article 2 (2) of the above amended Act provides that "management agency" refers to the management agency pursuant to the provisions of Article 11 of the Act: Provided, That in the case of rivers to be directly operated, the management agency shall be the Seoul Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor who performs construction and maintenance of directly controlled rivers pursuant to the provisions of the proviso of Article 16 of the Act (However, Article 5 of the above amended Local Autonomy Act (Act No. 4789 of Dec. 20, 194). Article 2 (5) of the above amended Local Autonomy Act (amended by Act No. 4789 of Jan. 1, 195) provides that a person who intends to receive compensation pursuant to the provisions of Article 2 of the Addenda to the above amended Act shall file a claim for compensation with the management agency pursuant to the above amended Act, and it shall be interpreted separately to the management agency for convenience of compensation.

Therefore, the managing agency of a river directly under the provisions of the River Act is the Minister of Construction and Transportation, but the managing agency in the procedure of compensation under the above compensation provision may file a lawsuit for compensation for losses against the State under the River Act. Under the above compensation provision, the State may file a lawsuit against the State, and the local government to which the Mayor of Seoul Special Metropolitan City belongs may file a lawsuit against the State. In this case, each of the obligation of the State

Therefore, it is erroneous that the Seoul Special Metropolitan City is not liable for the above compensation solely on the ground that the land subject to compensation under Article 2 of the Addenda to the above amended Act belongs to the Han River basin where the land belongs to the Han River basin where the party members are directly responsible for the above compensation. On the other hand, it is erroneous that the above decision of December 10, 1991 held that the Republic of Korea is not liable for the compensation of the said land, and that the above decision of December 10, 1991 is erroneous. Accordingly, the opinion expressed in each of the above decisions is modified.

3. Review of the Grounds for Appeal

A. Summary of the reasoning of the judgment below

However, the judgment of the court below in the judgment subject to a review of this case is legitimately confirmed that the land of this case for which the plaintiff sought compensation pursuant to Article 2 (1) of the Addenda to the above amended Act, and the land of this case for which the plaintiff sought compensation since the long-term flood in August 1925, the part of the above land affected the sewage of Han River from around August 1975 to the long-term river construction work conducted by the defendant from around 1,200, excluding flood and other temporary phenomena, and the land of this case for which a considerable quantity of flow of water has been shown at least 1,20 times per year except for the above land. Thus, the court below recognized that the above land of this case was the owner of the river area of this case for which "the river area controlled by the Minister of Construction and Transportation" under Article 897 of the Construction Notice of June 1, 1964, "the land where sewage has continuously flow and the natural conditions of the beginning of the river area of this case where sewage has been flowed, and determined as the owner of the river area of this case."

In addition, in light of the language and text of Article 2 of the Addenda to the above amended Act, the above judgment below applied only when the private right is extinguished between July 19, 1971 and December 31, 1984, which is the enforcement date of the current River Act, and in case where the private right is extinguished before the enforcement date of the current River Act, the compensation provision under Article 62 of the former River Act that "in case there is a person who suffers loss due to the disposition or restriction under Article 12, the State or local government must compensate for such loss" has been enforced, and thus, Article 2 of the Addenda to the above amended Act should be applied to the land of this case, which is based on the premise that Article 2 of the Addenda to the above amended Act applies to the land of this case.

The plaintiff asserts the above judgment of the court below as the ground of appeal against the above judgment. We examine whether the above judgment of the court below is just.

B. Application scope of Article 2 of the Addenda to the above amended Act

In order to become a river area, Article 12 of the River Act, which was originally promulgated by Act No. 892 of Dec. 30, 1961, stipulates that the management agency shall determine and publicly notify the river area in order to become a river area, and Article 62 of the same Act stipulates that any person who suffers loss due to the disposition under Article 12 of the same Act shall compensate the National Treasury for such loss and any person who is dissatisfied with the compensation shall be entitled to file a request for a ruling with the Land Tribunal.

However, Article 2 (1) 2 of the River Act, which was promulgated by Act No. 2292 of Jan. 19, 1971 and enforced six months after the lapse of the said Act, provides that "land and topography on which the flowing water of a river is continuously flowing, and the part on which the flowing water of a river is prone to a considerable flow of river at least once a year, such as the situation where the flowing water of a river is shown temporarily due to flood or other natural phenomena, and the area and area under item (b) and (c) of the same subparagraph (excluding those cases where the situation is temporarily expressed due to flood or other natural phenomena) shall be naturally a river area, and Article 74 of the same Act provides that "only if the river area is designated under Article 2 (1) 2 (c) of the same Act, losses shall be compensated, and no compensation provision has been provided for the case of naturally becoming a river area under the provisions of the Act.

In addition, Article 2(1) of the Addenda to the above amended Act promulgated on December 31, 1984 provided that "where the land was a river area prior to the enforcement of this Act because it fell under Article 2(1)2(a), or the land was owned by a state, the management agency shall compensate for the loss if it was owned by the State," which was excluded from the enforcement of Act No. 2292, promulgated on January 19, 1971, it stipulated that "the compensation provisions for the land excluded from the compensation were established."

In light of the history and history of the above Act and Article 2 (1) of the Addenda of the above Act provide that "where land becomes a river area prior to the enforcement of this Act, falling under Article 2 (1) 2 (a) of this Act" (the term "before the enforcement of this Act" refers to the provision of Article 2 (2) of the Addenda of the above Act, it shall be interpreted that prior to the enforcement of the above Act), if the above Article 2 (1) of the Addenda of the River Act (Act No. 2292 of Jan. 19, 1971) falls under Article 2 (1) 2 (a) of the same Act, it shall be naturally state-owned by the provisions of the Act, and if the River Act (Act No. 2292 of Jan. 19, 1971) does not have any compensation provision, it shall be interpreted that the above Article 2 (1) 2 of the Addenda of the River Act exists prior to the enforcement of the River Act, and thus, it shall not be interpreted that the above Act No. 29 of the River Act existed prior to the enforcement of the River Act.

Therefore, the decision of the court below's dismissal of the plaintiff's claim based on the same purport is just, and contrary to Article 2 of the Addenda to the above amended Act, it is not reasonable to conclude that the above amended Act applies to land which became a river area before the enforcement of the River Act under Article 2292

4. Therefore, the judgment subject to a retrial that dismissed the plaintiff's appeal on the ground that the plaintiff's appeal is without merit is just, and therefore, the new appeal is dismissed pursuant to Article 430 of the Civil Procedure Act, and the costs of the new appeal are assessed against the losing party and it is so decided as per Disposition. However, with respect to the lawsuit claiming compensation for losses under Article 2 of the Addenda to the amended Act, it is so decided as per Disposition by all participating Justices, except for a separate opinion as follows: Doing that the state and local governments become the same person liable for compensation for losses, it is so decided as per Disposition by all participating Justices.

The Concurring Opinion by Justice Jeong-ho, Justice Lee Yong-young, Justice Cho Chang-young, Justice Shin Sung-sung, and Justice Lee Yong-hun is as follows.

1. We agree with the conclusion of the majority opinion that the request for retrial of this case should be dismissed, but we cannot agree with the majority opinion that in the lawsuit of compensation claim under Article 2 of the Addenda to the above Act as to the land incorporated into the river area under the direct jurisdiction of a river, the State and a local government can all be the defendant. In this lawsuit, the State can only become the compensation obligor and the local government cannot become the defendant.

2. Since Article 2 (1) of the Addenda to the above amended Act does not define the concept of the management agency differently, the management agency referred to in this Article shall be deemed to mean the management agency of a river as stipulated in Article 11 of the River Act. Accordingly, in the case of a directly-run river, the Minister of Construction and Transportation, the Mayor of Seoul Special Metropolitan City, the Metropolitan City, or the Do governor shall be the management agency as stipulated in Article 2 (1) of the Addenda to the above amended Act. However, Article 2 of the above amended compensation provision provides that the definition of terms used in this Decree shall be as follows, and Article 11 of the Act refers to the management agency as stipulated in Article 11 of the Act: Provided, That in the case of a directly-run river, it is clear that Article 2 of the above compensation provision provides that the management agency of a directly-run river shall be the Mayor of Seoul Special Metropolitan City, the Mayor of Metropolitan City, or the Do governor who implements construction and maintenance of a directly-run river under the proviso of Article 1

The majority opinion does not exclude the above compensation provision from the application of Article 11 of the River Act, and the local government to which the Do governor under Article 16 of the River Act (which is interpreted as including the Seoul Special Metropolitan City Mayor and the Metropolitan City Mayor) belongs, belongs, as well as the Republic of Korea bears the duty of compensation pursuant to Article 2 of the Addenda of the River Act.

However, this view is difficult to accept.

First of all, the majority opinion assumes that management agencies under Article 2 of the Addenda to the above amended Act are different concepts, but this is doubtful in terms of the system of the Addenda to the above amended Act and the above compensation provision. In other words, Article 2 (3) of the Addenda to the above amended Act provides that "a management agency under paragraph (1) shall reflect an amount higher than the rate prescribed by Presidential Decree out of river revenues in the budget as compensation financial resources: Provided, That the State may bear or subsidize part of the expenses required for compensation from the National Treasury." Meanwhile, Article 3 (1) and (2) of the above amended Act provides that the Minister of Construction and Transportation may take measures to ensure that part of the compensation required for the compensation of land incorporated into a river area under his/her direct control is borne or subsidized from the National Treasury every year, and the management agency shall reflect an amount equivalent to one half of the amount borne or subsidized from the National Treasury among river revenues under his/her direct control as compensation financial resources for land incorporated into a river area, so it is clear that Article 3 of the above amended Act provides that the management agency should establish the above amended Act.

Furthermore, in order to delegate matters concerning the compensation which originally belongs to the state's duty to the local government and bear the obligation to the local government, it is natural that the legal basis is necessary, and the majority opinion considers Article 2 (5) of the Addenda to the above amended Act as the basis for delegation of the above compensation provision, but it is difficult to accept this.

The president may issue a delegation order with respect to the matters specifically determined and delegated by the Act pursuant to Article 75 of the Constitution, and may issue an enforcement order with respect to matters necessary for the enforcement of the Act, even if there is no delegation of the Act. Therefore, Article 2(5) of the Addenda of the amended Act provides that "the procedure for filing compensation under paragraph (1), the base date for calculating compensation, and other necessary matters may be prescribed by the Presidential Decree" means that the enforcement order may be issued with respect to the procedure for filing compensation, and it cannot be the basis for the delegation order, and only if the above provision provides that matters necessary for the procedure for filing compensation may be prescribed by the Presidential Decree, it cannot be deemed that the State delegates matters belonging to its duties to the Presidential Decree.

3. Therefore, even if Article 2 subparagraph 2 of the above compensation provision provides that the management agency of a river to which the above compensation provision belongs differently from Article 11 of the River Act, it cannot be deemed that a local government has the duty of compensation with the State. The compensation obligor under Article 2 of the Addenda of the above compensation provision concerning a directly-run river is the State under Article 11 of the River Act, and the Seoul Special Metropolitan City et al. cannot be the defendant in a civil lawsuit seeking compensation. Therefore, the judgment subject to a retrial and the opinion expressed in the decision subject to a retrial of this case on March 22, 1994 should be maintained, and on the other hand, the opinion expressed in the above decision on December 10, 191 should be modified.

However, in the case of such interpretation, it is difficult for the parties who believe that the above compensation provision is effective, and accordingly, the parties who filed a lawsuit claiming compensation under Article 2 of the Addenda to the above amended Act with the Seoul Special Metropolitan City and other local governments as the defendant, to lose. Since the extinctive prescription period of the above compensation claim lawsuit has already expired on December 30, 190 pursuant to Article 2 (2) of the Addenda to the above amended Act, there is a question as to whether the above parties are likely to prevent the above parties from filing a lawsuit claiming compensation and receiving remedy again against the state, and it does not result in harsh results to the parties who trusted the above compensation provision. However, if such parties filed a lawsuit claiming compensation against the State, it shall not be allowed under the principle of good faith to enact the erroneous Presidential Decree so that it would be impossible for the parties to exercise their right properly within the original period of extinctive prescription, barring any special circumstances. Accordingly, the above unfair result can be prevented.

Chief Justice Yoon-young (Presiding Justice) (Presiding Justice), Kim Jong-soo, Justice Kim Jong-soo, Justice Kim Jong-ho, Justice Park Jong-ho (Presiding Justice) and Lee Jong-hee, Justice Lee Jong-hee, Justice Kim Jong-chul, Justice Lee Chang-chul, Justice Lee Jae-young