In a case where an operator of the electric utility who is liable to install electric installations on the existing land and is not entitled to occupy and use such electric installations and removes electric installations pursuant to Article 72 (2) and (3) of the Electric Utility Act, whether he/she may claim for relocation expenses to the installer of the ground objects, etc. pursuant to Article 72 (4) of the same Act (negative)

The purpose of the main text of Article 72(4) of the Electric Utility Act is to allow an operator of the electric utility business to claim for relocation expenses to an installer of the ground structures, etc. in consideration of the fact that he/she could continuously use electric installations installed on the existing land and could have operated the electric utility business even if he/she could have continuously operated the electric utility business, and that he/she could have caused the occurrence of a cause under Article 72(3) of the same Act. Thus, in cases where an operator of the electric utility business is under the obligation to remove the fish volume because he/she did not have the right to possess and use electric installations on the existing land, the relocation expenses cannot be transferred to the installer of the ground structures, etc., and this is also the same if the installer of the ground structures, etc. requests the operator of the electric utility

Article 72(2), (3), and (4) of the Electric Utility Act

Han-ju Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for defendant-appellant)

Republic of Korea (Law Firm International, Attorney Ha Man-young, Counsel for defendant-appellant)

Busan High Court Decision 2009Na14500 decided September 30, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first and third grounds for appeal

A. In the event that electric installations for the electric utility (hereinafter “electric installations”) fail to meet the technical standards due to the installation of ground objects and other things (hereinafter “ground objects, etc.”) installed by another person, the person who has set up the ground objects, etc. may take necessary measures to ensure that the electric installations in question meet the technical standards, or request an operator of the electric utility business to take necessary measures (Article 72(2) of the Electric Utility Act). The operator of the electric utility who has received such a request shall take necessary measures, except in such cases as prescribed by the Presidential Decree where it is impossible to secure snow sites for the relevant measures or where it is technically difficult to do so, and where it is prescribed by the Presidential Decree, he/she shall bear the expenses necessary for the relevant measures (Article 72(3) of the Electric Utility Act). However, the main sentence of Article 72(4) of the same Act provides that an operator of the electric utility business may not demand the installer of the existing electric installations in consideration of the fact that he/she could continue to use the electric installations installed on the land and thus, he/she shall not be obliged to remove the existing ground objects.

B. Comprehensively taking account of the evidence held by the court below: ① the Plaintiff’s use period of 10 parcels of State land, including the instant parcels of land owned by the head of Busan Regional Railroad Office, for 10 October 1, 198; ② the Plaintiff’s use of and profit from the instant parcels of land was 187,60 won per annum; ② the use of and profit from the instant parcels of land including the instant parcels of land was 187,000, and the Plaintiff’s use of and profit from the instant parcels of land was 10 to 3 years, and the Plaintiff’s use of and profit from the instant parcels of land was 180,000,000,000 won for 20,0000,0000 won for 10,000,000 won for 20,000,000 won for 20,000,000 won for 18,000,000 won.

Based on such factual basis, the lower court determined that the Plaintiff, who lost the right to possess and use each of the of the instant lands, was not entitled to claim for the relocation expenses against the Defendant on the ground of Article 72(3) and the main text of Article 72(4) of the Electric Utility Act, on the ground that the Plaintiff’s duty to remove the transmission tower and the transmission line at the Plaintiff’s expense pursuant to Article 19 subparag. 1 of the conditions for permission for the use and use of each of the instant lands and Article 24(6) of the State Property Act, and the main text of Article 72(3) and the main text of Article 72(4) of the Electric Utility Act applies to cases where the electric utility business operator properly maintains electric installations by securing the right to possess and use the site for the relevant facilities.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to interpretation and application of Article 72(3) and main text of Article 72(4) of the Electric Utility Act, or in exceeding the bounds of the

2. On the second ground for appeal

A. Permission granted by the administration agency of State property, etc. for the use and profit-making of administrative property is not a private economic act conducted as a private economic entity, but an administrative disposition conducted in a superior position with public authority by the administration agency (see Supreme Court Decisions 96Nu17325, Apr. 11, 1997; 2004Da31074, Mar. 9, 2006; 2004Nu31074, Feb. 27, 1998; hereinafter referred to as the "administrative property management agency") and constitutes a dive patent that establishes a specific person's right to use administrative property, and the act of refusing such application constitutes an administrative disposition (see, e.g., Supreme Court Decision 97Nu

On the other hand, when a certain administrative disposition becomes a preliminary question as to the validity of an administrative disposition in a civil procedure, the parties concerned may assert the invalidity of the administrative disposition as a matter of course, but in this case, they are liable to assert and prove the reason why the administrative disposition is null and void (see, e.g., Supreme Court Decisions 91Nu6030, Mar. 10, 1992; 2009Du3460, May 13, 2010; 2009Du3460, Apr. 13, 201). The assertion that the administrative disposition becomes null and void as a matter of course by the date of closing argument in the court below cannot be a legitimate ground for appeal (see, e.g., Supreme Court Decisions 82Nu295, Oct. 11, 1983; 9Da17319, Apr. 27, 2001).

B. As the grounds of appeal, the Plaintiff asserts that the decision not to grant permission for the extension of the permission for use and profit of each of the instant land violates Article 92 of the Electric Utility Act or is null and void against the good faith principle. However, according to the records, the Plaintiff did not assert that the above administrative disposition is null and void as a matter of course until the date of closing argument in the court below, and thus, it cannot

3. On the fourth ground for appeal

As the grounds of appeal, the Plaintiff’s exercise of pressure to the headquarters in Yong-nam Regional Headquarters of the Korea Rail Network to refuse an application for permission to use and profit from each of the land of this case and thereby exempted the Defendant from the burden of dual equipment of the transmission tower and the transmission line. In this case, the Plaintiff may assert that the period of permission to use and profit from each of the land of this case has not expired pursuant to Article 150(2) of the Civil Act. Thus, the Plaintiff may claim the Defendant from the Defendant on the ground of Article 72(3) and the main text of Article 72(4) of the Electric Utility Act. However, according to the records, the Plaintiff did not assert the above assertion until the date of closing argument in the court of final appeal, this cannot be a legitimate ground

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)