[1] In a case where part of the public waters were substantially reclaimed and siteed, whether the public waters are in the nature of the law (affirmative in principle)

[2] The method of calculating occupancy, use fees, and indemnity for a building that does not fall under any of the buildings under Article 2 subparagraph 5 of the former Public Waters Management Act

[1] Since public waters are so-called natural public waters as they are directly provided for public use, even if part of public waters were actually reclaimed and siteized, they still hold the nature of public waters as long as the state does not abolish them as public waters.

[2] In full view of the contents of Article 2 subparag. 1(b) and Articles 5(1)1 and 10(1) of the former Public Waters Management Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter “Act”), Article 8(2) [Attachment 2] subparag. 1 of the former Enforcement Rule of the Public Waters Management Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 300, Oct. 15, 2010; hereinafter “Enforcement Rule”), the legislative purport of granting permission to occupy and use public waters, and imposing indemnity, the term “other structures” under Article 5(1)1 of the Act is a structure that can be deemed identical or similar to those listed under subparag. 1 and that does not fall under Article 2 subparag. 5 of the Act, and it is reasonable to calculate the usage fee or indemnity in accordance with Article 5(1)1 of the Enforcement Rule [Attachment 2] of the Act.

[1] Article 2 of the former Public Waters Management Act (repealed by Act No. 10272, Apr. 15, 2010; Article 2 of the current Public Waters Management and Reclamation Act) (see Article 2 of the Public Waters Management and Reclamation Act) / [2] Article 2 subparagraph 1 (b) of the former Public Waters Management Act (repealed by Act No. 10272, Apr. 15, 2010; Article 2 subparagraph 1 (c) of the Addenda of the Public Waters Management and Reclamation Act; Article 2 subparagraph 1 (c) of the former Enforcement Rule of the Public Waters Management Act (Amended by Act No. 10272, Apr. 15, 2010; Article 2 subparagraph 1 (c) of the current Public Waters Management and Reclamation Act); Article 5 (1) 1 (see current Public Waters Management and Reclamation Act; Article 8 (1) 1 of the current Public Waters Management and Reclamation Act); Article 2 of the former Enforcement Rule of the Public Waters Management Act (see Article 2(1) of the current Public Waters Management and Reclamation Act)

[1] Supreme Court Decision 95Nu10327 delivered on December 5, 1995 (Gong1996Sang, 262)

Plaintiff (Attorney Lee Young-hoon et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 2 others

Seoul High Court Decision 2011Nu10173 decided December 21, 2011

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found that the Plaintiff, as the owner of the 2nd floor building on the ground of Guri-si ( Address 1 omitted), occupied 85 square meters (hereinafter “the main part of this case”) out of 4,327 square meters in Guri-si ( Address 2 omitted), and determined that the act of the Plaintiff’s disposal of the instant building under Article 2 subparag. 1(b) of the former Public Waters Management Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter “Act”) defined public waters as “state-owned land as a river, lake, marsh, ditch, or other water surface or water surface used for public purposes,” and determined that the instant part of this case’s building was unlawful on the ground that it was entirely contacted with the building site of this case, and it did not constitute a “public water surface” under Article 2 subparag. 5 of the Act, regardless of its use. 5.

However, since public waters are so-called natural public waters and themselves are provided for the direct use of public waters, even if part of public waters were actually reclaimed and siteed, the state still has the nature of public waters as long as it does not abolish them as public waters (see Supreme Court Decision 95Nu10327 delivered on December 5, 195, etc.).

In addition, according to Article 5 (1) 1 of the Act, a person who intends to newly construct, rebuild, extend, alter, or remove a wharf, breakwater, bridge, floodgate, building, or other structures on public waters shall obtain permission from the management agency for occupancy and use. According to Article 2 (5) of the Act, the term "building" in this Act means a building under Article 2 (1) 2 of the Building Act, which is installed so that seawater can flow away without creating land on public waters. According to Article 10 (1) of the Act, the management agency shall collect indemnity equivalent to 120/100 of the amount of usage fees and usage fees of the public waters from the person who occupies or uses the public waters without obtaining permission for occupancy and use or after the expiration of the period of occupancy and use, and the purport of calculating the price of the public waters in accordance with Article 2 (1) 1 through 30 of the former Enforcement Rule of the Public Waters Management Act (excluding the cases of the installation of an adjacent structure by the Ordinance of the Ministry of Land, Transport and Maritime Affairs, hereinafter referred to in Article 20).

Nevertheless, the court below determined that the part of this case, which is a ditch site, is not a public water surface without determining whether the part of this case still has the nature as a public water surface in law, and that the part of this case, which is a ditch site, does not fall under the "building" under Article 5 (1) 1 of the Act, was unlawful. Thus, the court below erred by misapprehending the legal principles on the form of the act of occupying and using public water surface under the former Public Waters Management Act, which affected the conclusion of the judgment.

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 Park Poe-dae (Presiding Justice)