Plaintiff 1 and one other (Attorney Yellow-chul, Counsel for the plaintiff-appellant)

Kimpo-si (Attorney Kim Jong-sub, Counsel for defendant-appellant)

November 10, 2016

1. The defendant shall pay to plaintiffs 1 622,061,440 won, 201,695,790 won to plaintiffs 2, and 5% per annum from May 10, 2016 to December 1, 2016, and 15% per annum from the next day to the date of full payment.

2. The plaintiff 2's remaining claims are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff 1 and the Defendant is borne by the Defendant, and the part arising between the Plaintiff 2 and the Defendant is borne by the Plaintiff 2, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The main text of Paragraph 1 (part 1) and the defendant shall pay to the plaintiff 2 262,895,790 won with 5% interest per annum from the day after the copy of the complaint of this case is served to the day after the judgment is rendered, and 15% interest per annum from the next day to the day of complete payment (Provided, That each "duplicate of complaint" shall be deemed "duplicate of the claim and the cause of the claim".

1. Basic facts

A. Construction report and acceptance by Plaintiff 2

1) On July 12, 2011, Plaintiff 2 changed from “○○○ Eup” to “○○○○ Eup” due to the change of the name of the administrative district on November 14, 2011; hereinafter “○○ Eup”) under the Defendant’s control, on the ground that he/she owns ( Address 1 omitted), Plaintiff 2 filed a building report for the construction of a building for the construction of a building for the purpose of detached houses (hereinafter “each of the instant land” and “instant building report”) on the ground of the same Ri ( Address 2 omitted) building as the building for the second-class neighborhood living facilities (general restaurant) owned by himself/herself.

2) On July 14, 201, the non-party 1, who received the instant building report by the Plaintiff 2, asked the relevant department about whether it conforms to the relevant laws and regulations, but did not request consultation necessary for permission to construct a building on each of the instant land designated as a explosives-related restricted protection zone under the Protection of Military Bases and Installations Act to the Second Unit of the Marine Corps, which is the jurisdictional unit.

3) On September 9, 2011, the Defendant issued a certificate of completion of report as to the instant building report to Plaintiff 2 on the following grounds: (a) Nonparty 2, who took over the said Nonparty 1’s duties upon the Defendant’s assignment of personnel management, was in excess of the matters to be consulted with the jurisdictional unit; and (b) confirmed the Defendant’s permission to engage in development activities;

4) On January 17, 2012, Plaintiff 2 reported the commencement of the above building to ○○ Eup and received a certificate of completion of report from ○○ Eup.

B. Plaintiff 2’s report on construction alteration and return

1) On March 2012, Plaintiff 2 filed a report on the construction report (hereinafter “instant report on the construction report”) in ○○ Eup in order to increase the building area reported at the time of the instant report by filing a civil petition (a civil petition number omitted) on the website related to construction administration.

2) After receipt of the instant construction report, Nonparty 2 found that the consultation with the jurisdictional unit is necessary to build a new building on each of the instant land, and on March 26, 2012, on March 26, 2012, requested consultation pursuant to Article 13 of the Protection of Military Bases and Installations Act to the Second Team of the Marine Corps.

3) As a result of deliberation on the request for the above consultation by the ○○○ Eup of the Marine Corps, the second group of the Marine Corps consented to the Defendant on April 27, 201, on the ground that “the applicant shall not construct general restaurants and retail stores in accordance with Article 8 of the Enforcement Rule of the Protection of Military Bases and Installations Act as explosives-related protection zones, and standards for the safety management of ammunition and explosives of the Ministry of National Defense.”

4) On May 21, 2012, ○○ Eup notified the instant building report and construction report to the △△ architect office that vicariously performed the construction report and construction report on behalf of the second company of the Marine Corps on the ground of the reasons for the consent of the second company of the Marine Corps, that the report should be rejected for the following reasons with respect to the report on construction (permission/report on construction) of each of the instant real estate to be filed with a thickness (civil petition number omitted). The reason for return was to be informed that the report should be rejected for the following reasons. The application is to be filed with explosives-related protection zones under Article 8 (Consultation Criteria within Explosives Protection Areas) of the Enforcement Rules of the Protection of Military Bases and Installations Act and the Ministry of National Defense’s standards for safety management of ammunition and explosives

(c) Acceptance of reports on alteration of construction participants of ○○ Eup, and notification of suitability for inspection on completion of sewage treatment facilities of the defendant

1) The Plaintiff 1 changed the construction participants from Plaintiff 2 to Plaintiff 1 on the second-class neighborhood living facilities (general restaurants) constructed on the ground among the land in this case to ○○○ Eup. The Plaintiff 1 accepted the report on the change of the construction participants on November 29, 2012.

2) On December 7, 2012, the Defendant notified the Plaintiffs of the suitability for the completion inspection of the treatment facilities of sewage installed on each of the instant land for which the Plaintiffs filed an application.

D. Plaintiffs’ application for approval of use and suspension order of new construction of ○○ Eup

1) On January 15, 2013, the Second Group of the Marine Corps requested the suspension of construction and the removal of buildings and the revocation of a new building permit on each of the instant land to the Defendant and the ○○○ Eup.

2) On February 14, 2013, the Plaintiffs filed an application for approval of the use of each of the instant buildings newly constructed on each of the instant land (hereinafter “each of the instant buildings”) with ○○ Eup (hereinafter “application for approval of the use of the instant buildings”).

3) On February 27, 2013, ○○ Eup issued an order to suspend the construction of a building on each of the instant land on the grounds that the second unit of the Marine Corps requested the Plaintiffs to take the above administrative measures.

E. Progress

1) On April 2, 2013, Nonparty 5, an employee of the ○○○ Eup office, who takes over Nonparty 2’s duties, proposed a method of consultation with the jurisdictional unit by converting each of the instant buildings into an agricultural warehouse, and the Plaintiffs accepted it and expressed their intent to withdraw the application for approval of use of the instant building. The ○○ Eup notified the Plaintiffs that the application for approval of use of the instant building was withdrawn.

2) Following the above consultation, the Plaintiffs established an agricultural company, △△△, and ○○-Eup respectively, and thereafter, in ○○-Eup, the Plaintiffs reported the change of the construction participants in the building for the second-class neighborhood living facilities (city 1 omitted) on the ground from Plaintiff 2 to △△△, and the construction participants in the building for the second-class neighborhood living facilities (city 1 omitted) on the ground from Plaintiff 1 to △△△, and the ○○-Eup accepted the report.

3) The Plaintiffs filed an application for approval of the use of each of the instant buildings with ○○ Eup in the name of △○○○○○, Inc., and on April 4, 2013, ○○○○ Eup requested consultation pursuant to Article 13 of the Protection of Military Bases and Installations Act with the second company of the Marine Corps. However, the second company of the Marine Corps did not comply with the restoration of the original state, such as the removal of each of the instant buildings.

4) On November 28, 2014, ○○ Eup rejected the application for approval of the above use in the name of △△ and △△○○○○○○ on the ground of the father’s consent of the Second Group of the Marine Corps.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 6, 7, 11, Eul evidence Nos. 3 through 11, 15, 17, 18, 19, 24 (including each number), witness Nos. 2 and 5, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The employees of the ○○○ Eup Office, who are public officials belonging to the Defendant, need to consult with the jurisdictional unit when they build a new building on each land of this case, which is a restricted protection zone under the Protection of Military Bases and Installations Act, but did so, the Plaintiffs accepted the building report of this case, and the Plaintiffs trusted that they constructed each building of this case on each land of this case. However, the ○○ Eup rejected the application for approval of the use of this case on the ground that the jurisdictional unit again consented to the new construction of each building of this case, and the Plaintiffs should remove each building of this case. By negligence of the public officials belonging to the Defendant, the Plaintiffs suffered damages as set forth below, and thus, the Defendant is liable to compensate for such damages pursuant to Article 2(1)

○○ 622,061,440 won for Plaintiff 1’s damages (=3,903,00 won for the installation of water supply facilities + KRW 4,756,400 for the installation of electric facilities + KRW 538,882,402 for each of the buildings of this case + KRW 23,676,565 for the removal of each of the buildings of this case + KRW 50,843,073 for waste disposal costs)

○○ Damage 262,895,790 won for Plaintiff 2’s damage (=162,895,790 won for the construction of each of the instant buildings + (22,377,570 won for public charges imposed on the land ( Address 2 omitted) + Total public charges imposed on the land ( Address 1 omitted) + Total of 140,518,220 won for the construction of each of the instant buildings + KRW 500 for the land owned by Plaintiff 2, which was planted on each of the instant land for the construction of each of the instant buildings. Accordingly, the value of the relevant tree is KRW 100,000 for each of the instant buildings (=the value of one share price of KRW 200,000 x 500)];

B. Defendant’s assertion

1) Main Safety Defenses

Since the Defendant rejected the application for approval of the use of each of the buildings of this case to △△△, Inc. on November 28, 2014, the Plaintiffs are not entitled to the claim for damages, and if the Plaintiff is eligible to the △△△, the competent court is deemed to have violated the jurisdiction over the lawsuit of this case, since it is the incidental branch of the Incheon District Court

2) As to the merits

In accepting the instant building report, it is recognized that public officials belonging to the Defendant were negligent in not going through the consultation procedures with the jurisdictional unit. However, in rejecting the instant building report on April 27, 2012 or on May 21, 2012, the public officials belonging to the Defendant knew that the instant building report cannot be revoked or withdrawn on the ground of the vice consent of the jurisdictional unit, and that the building cannot be newly built on each of the instant land. Nevertheless, the Plaintiffs were demoted to construct each of the instant buildings. Therefore, the Plaintiffs are not liable to the Defendant for damages incurred from the time they knew that the building was not newly built.

3. Judgment on the main defense of this case

In the instant lawsuit, it is evident that the Plaintiffs merely seek compensation for damages suffered by the Plaintiffs due to the negligence of the public officials belonging to the Defendant who received the instant building report, but do not seek damages suffered by △△ and △△△△△. Therefore, the Plaintiffs are not eligible to claim damages from the Plaintiffs, or the Defendant’s main defense against which the instant lawsuit was filed on the premise of such claim is groundless.

4. Judgment on the merits

(a) Occurrence of liability for damages;

1) Establishment of liability for damages

According to the above facts, the non-party 1 and the non-party 2, who are public officials belonging to the defendant, who are local governments, are obligated to consult with the jurisdictional unit under Article 13 of the Act on the Protection of Military Bases and Installations in order to accept the building report of this case on each of the land of this case, which is a restricted protection zone under the Act on the Protection of Military Bases and Installations, but they should remove each of the buildings of this case which the plaintiffs who received the building report of this case illegally and negligently believed and newly built the building report of this case. Thus, the defendant is liable to compensate for damages suffered by the plaintiffs due to negligence

2) Whether liability has been limited

According to the statement Nos. 2, 17 through 20, and 24 (including each number), and witness Nonparty 2’s testimony, the Plaintiffs applied for permission for development activities or the building report to build buildings on each of the instant land from before the building report of this case, including three times around 2006, 209, and one time before 2010, but the Defendant applied for permission for development activities and the Eup returned the building report on the ground that each of the jurisdictional units consented to the construction report of this case. The Defendant did not state that the construction report of this case was within the restricted protection zone under the Protection of Military Bases and Installations Act when the construction report of this case was made by the △△ architect corporation and the construction report of this case on behalf of the civil petitioner, and that the construction report of this case falls under the restricted protection zone under the Protection of Military Bases and Installations Act. However, in light of the following circumstances, according to Article 13 of the Protection of Military Bases and Installations Act, it cannot be seen that the Plaintiffs did not have a duty to consult with the competent administrative authority prior to the construction report of this case.

Therefore, the defendant's liability for damages against the plaintiffs is not limited.

(b) Scope of damages;

1) Where the plaintiffs knew that it was impossible to construct each of the buildings of this case by the defendant's notification of the non-construction of the building of this case, whether the plaintiffs forcibly built each of the buildings of this case

As seen earlier, △△ architect Co., Ltd. acting on behalf of the plaintiffs, such as the building report of this case, the building report of this case, the building report of this case, and the building report of this case, and the public officials belonging to the defendant were notified of the return of the building report of this case to △△△ architect Co., Ltd. as to the construction report of this case. However, considering the above facts and the following circumstances, considering the aforementioned facts, the aforementioned facts and the evidence presented by the defendant can be considered as follows, it is difficult to view that the plaintiffs were forcibly engaged in the construction of each building of this case even though the public officials belonging to the defendant revoked the building report of this case and notify the plaintiffs that the new construction of each building of this case is impossible, and there is no other evidence to acknowledge this. Accordingly, the plaintiffs' assertion that the construction of each building of this case was demoted even after the plaintiffs knew of the fact that the new construction of each building of this case was impossible.

A) Only because an application for permission for development activities or a building report on the same content prior to the instant building report was rejected on the ground of the father’s consent of the jurisdictional unit, it is difficult to deem that the Plaintiffs knew that the construction of each of the instant buildings was impossible in performing construction activities in accordance with the instant building report. Rather, considering that the building report was rejected on the ground that there was no agreement with the jurisdictional unit and the instant building report was accepted, the Plaintiffs were bound to trust that the construction of each of the instant buildings would be possible.

B) On May 21, 2012, after the Defendant becomes aware that the instant building report was made without the consultation with the jurisdictional unit, and then rejected the instant building report on May 21, 2012 on the grounds of the consent of the jurisdictional unit, the purport of revoking or revoking the instant building report is that the Plaintiffs were aware of the impossibility of building construction of each of the instant building. However, as to the building report with the same content that existed before the instant building report, ○○ Eup clearly stated the disapproval of building construction by stating the consent of the jurisdictional unit on the grounds of non-permission under the title of “Notice of Non-permission of Construction (New Construction)” and clearly stating that the rejection of building report was made on May 21, 2012, the title of the instant building report on the rejection of the building report on May 21, 201 is merely a new general restaurant and retail store on the grounds of rejection of the building report on the grounds of rejection, and it is difficult to say that the building report on the building report on the building report on the instant case was rejected.

C) The Defendant asserts that the construction of each of the buildings of this case is impossible. However, even if △△ Director Co., Ltd. entrusted the Plaintiffs with the receipt of civil petition, it is difficult to deem that it has the right to receive the notification of the intent to withdraw or revoke such acceptance of the building report of this case that it had already been accepted. Moreover, since public officials belonging to the Defendant knew of the fact that the building report of this case was accepted by mistake, the Plaintiffs did not directly inform or confirm the fact that the Plaintiffs completed the construction of each of the buildings of this case and applied for the approval of use.

D) Meanwhile, the Defendant, at the time of the notification of the return of the instant construction report, notified the Plaintiffs that the construction of each of the instant buildings was impossible, but thereafter, received various reports that were in the process of construction works of each of the instant buildings, including the Plaintiff 1’s report of the construction participants and the application for the completion inspection of sewage treatment facilities.

E) Although the Defendant appears to have known that the construction of each of the buildings of this case was being carried out as above, it did not take measures such as an order to suspend construction of each of the buildings of this case. At the time of the completion of construction of each of the buildings of this case, the Defendant requested administrative measures of the Second Group of the Marine Corps and applied for approval of the use of each of the buildings of this case to the Plaintiffs.

F) Since then, public officials belonging to the Defendant agreed to take measures to contact the Plaintiffs and not to remove each of the buildings of this case, leading the Plaintiffs to withdraw the application for approval of use of this case. According to the proposal above, the Plaintiffs changed the name of the construction participant to an agricultural company established by the Plaintiffs under consultation with public officials belonging to the Defendant, and sought measures to convert the use of each of the buildings of this case to the agricultural warehouse.

2) As to property damage

A) Plaintiff 1’s losses

(a) Costs of installing water supply facilities and electric facilities;

Under the overall purport of the statements and arguments by the Plaintiff 1 and the Defendant, there is no dispute between the Plaintiff 1 and the Defendant, and the ○○ Eup imposed KRW 3,903,00 in terms of the water supply construction cost, the facility contribution, and the fee, on the private water supply work to be used in each of the buildings of this case, and the Defendant imposed KRW 4,756,40 in the construction cost of electric facilities, and it can be acknowledged that the Plaintiff 1 paid each of them. Accordingly, the Plaintiff 1 suffered damages equivalent to KRW 8,659,40 in total for the installation cost of water supply facilities and electric facilities (= KRW 3,903,00 + KRW 4,756,40 in + KRW 400).

(2) Construction cost, removal cost, and waste disposal cost of each building of this case

According to Gap evidence Nos. 3-1 through 28-2, appraisal results and the purport of the entire arguments against the non-party 3 of this court, the newly constructed construction of each of the buildings of this case was conducted at plaintiff 1's expense, and the construction cost of each of the buildings of this case was KRW 538,882,402 (= KRW 426,676,636 of each of the buildings of this case + KRW 112,205,766 of each of the buildings of this case for the purpose of using a neighborhood living facility + KRW 112,205,766 of each of the buildings of this case). It is recognized that the removal cost of each of the buildings of this case was 23,676,565 of each of the buildings of this case, and 50,843,073 of waste disposal cost was 50,402,040 won in total (= KRW 538,882,402 won + 2636,56507)

B) Plaintiff 2’s damages

(1)Public imposts;

According to the purport of the evidence No. 2-1, No. 2-2 and the entire pleadings, upon accepting the instant building report to Plaintiff 2, ○○ Eup imposed KRW 180,036,200 on the aggregate of the public charges in the name of the license tax, national housing bonds, regional development public bonds, charges for diversion of farmland, and the performance guarantee bond for development activities. Plaintiff 2 is recognized to have paid KRW 162,895,790 (the performance guarantee bond for development activities shall be submitted to the performance guarantee bond and paid for the premium) as public charges. Accordingly, Plaintiff 2 suffered damages equivalent to KRW 162,895,790 of the above public charges.

As to this, the Defendant asserts that, among the public charges paid by Plaintiff 2, the national housing and the local development public bonds are different from the actual charges, and the farmland preservation charges are returned on condition that Plaintiff 2 restores each of the instant land as farmland, so that each of the instant land is not obligated to be returned until it is restored to farmland. However, there is no evidence to deem that the actual amount of the farmland preservation charges differs from the public charges imposed by the Defendant on Plaintiff 2, and since the farmland preservation charges were paid upon the public official’s erroneous acceptance of the building report of this case, it is reasonable to view that the damage suffered by Plaintiff 2, regardless of whether each of the instant land was restored to farmland. Accordingly, the Defendant’s above assertion is

(2) The value of tree as set forth in each of the instant lands

According to the purport of Gap evidence 2- 9, Gap evidence 8, 9, Eul evidence 10-1, 2, Gap evidence 12, 13-2, and the whole pleadings, it is recognized that the plaintiff 2 planted trees on each of the land of this case owned by the plaintiff 2. The plaintiff 10-1 and Eul evidence 13-2 are as follows: according to the records of Gap evidence 10-1 and Eul evidence 13-2,079 square meters ( Address 3 omitted) 2,079 square meters for each of the land of this case and Kimpo-si (203 square meters for 203 square meters) x 10-2,000 square meters for each of the above land of this case; 30-2,000 square meters for each of the above land of this case; 310-2,000 square meters for each of the above land of this case, and 30-1,000-4,000 square meters for each of this case.

3) Sub-determination

The Defendant is obligated to pay to Plaintiff 1 62,061,440 won (=8,659,400 won + 613,402,040 won + 201,695,790 won + 38,800,000 won +) and damages for delay calculated at each rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., as the Plaintiffs seek, with respect to each of the above amounts (i.e., 162,895,790 won + 38,800,000 won) and each of the above amounts, from May 10, 2016 to December 1, 2016, which is the day following the day when the application for change of the purport of the instant claim and the cause of the claim was served on the Defendant.

5. Conclusion

The plaintiff 1's claim is justified, and the plaintiff 2's claim is accepted within the scope of the above recognition. The plaintiff 2's remaining claim is dismissed. It is so decided as per Disposition.

Judges Park Jong-dae (Presiding Justice)