The Korea-U.S. P. T.D. (Law Firm Lee & Kim, Attorneys Kim Yong-nam, Counsel for defendant-appellant)

Kimpo-market (Attorney Lee Jong-hwan, Counsel for defendant-appellant)

October 19, 2016

Incheon District Court Decision 2014Guhap2656 Decided July 9, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's disposition of denial of permission to occupy and use public waters against the plaintiff on June 26, 2014 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance except for dismissal or addition of part of the judgment of the court of first instance as follows. Thus, the summary used in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the court of first instance).

2. Parts to be removed or added;

The term "land and buildings" in the 8th place for the second ground of 00 square meters shall be read as "land (495 square meters in a site area) and buildings (98.15 square meters in a building area, 196.3 square meters in a total area)".

○○ The 5th page “ June 15, 2014,” in the 4th 5th 5th page, shall be read as “ June 19, 2014,” and the 10th eth eth eth eth , “Incheon District Court” shall be added thereafter.

The 5th head of the 5th head of the “cement facility, crematory facility, etc.” shall be confined to “the instant charnel facility”, and the 6th head of the 4th place “holding” shall be confined to “the occupation”.

The following shall be added to the 7th page “..........”

In addition, Article 4 (2) of the Enforcement Rule of the Public Waters Act provides that "An application for permission to occupy and use public waters shall be accompanied by the following documents." Article 4 (2) of the Enforcement Rule of the Public Waters Act provides that "An application for permission to occupy and use public waters shall be accompanied by the documents referred to in subparagraph 6 that shall be notified by the Minister of Environment pursuant to Article 18 of the Environmental Impact Assessment Act (limited to a project subject to environmental impact assessment pursuant to Article 4 of the Environmental Impact Assessment Act)." Since there is no evidence that the contents of occupancy and use of public waters of this case applied by the Plaintiff constitute a project subject to environmental impact assessment pursuant to the Environmental Impact Assessment Act

The part 3 to 9 of the 8th page “(3) Incheon District Court ................................................................................

○ 8 pages 13 through 20 are as follows.

In full view of the evidence mentioned above, Gap evidence and evidence No. 7-5, Gap evidence No. 25 and the appraisal result of non-party No. 2 and the purport of the whole pleadings as to the above appraiser, the following facts are acknowledged.

① On June 19, 2014, when filing an application for permission to occupy and use the public waters of this case with the Defendant, the Plaintiff submitted a repair account statement (Evidence A 7-5) for the public waters of this case prepared by Nonparty 4 as a water resources development technician. In the said repair account statement, the Plaintiff again determined that the water supply account statement for the public waters of this case was based on the design flood volume calculated at the flood discharge point of the public waters of this case: (a) 278x C (L278x C (NL), x A (NL), 30-day flood discharge pool of this case for the purpose of calculating the water supply volume of the public waters of this case; and (b) 30-day flood discharge box of this case for the purpose of calculating the water supply volume of the public waters of this case for the purpose of calculating the water supply volume of the public waters of this case for 1,2, and 30-day water supply volume of the public waters of this case for the purpose of calculating the water supply volume of the public waters of this case for 30-day.

② On the other hand, in the appraisal report (No. 25) submitted by Nonparty 3 of the Incheon District Court 2012Guhap5736 case, the daily flood discharge of the public waters of this case was calculated by using the joint accounting of the daily flood discharge of the public waters of this case. The flood discharge time of the public waters of this case was calculated by 11.41 minutes, plus 10 minutes of the daily flood discharge time of the public waters of this case, and the 21.41 minutes, plus 10 minutes of the daily flood discharge time of the public waters of this case, was calculated by 150mm/hr, and accordingly, the flood discharge of the public waters of this case was calculated by 3.5 cm with 3.5 cm with the flood discharge (the planned flood discharge) for the 30-year period of the daily inflow of the public waters of this case. Moreover, the above appraisal report is reasonable by assuming the difference of 1.0 meters with the drainage pipe installed in the public waters of this case and calculating the flood discharge capacity of the public waters of this case.

③ On the other hand, in calculating the daily flood volume of the public waters of this case using the combined accounting method, Nonparty 2 calculated the flood rate of 30 minutes in the river basin of the public waters of this case (at the same time as the inflow time to which the Kerby formula applies and the flow time to which the Kerbrav formula applies), and calculated the 30-year river strength of the public waters of this case as 128.3mm/hr. Based on this, the said 30-year river strength was calculated as 128.3m/hr for the river basin of this case. Based on this, the said appraiser deemed the 30-year river flood volume of the public waters of this case as the 30-year river width of the water tank installed in the public waters of this case to be 3.021m in terms of the existing measurement document, and the said appraiser deemed the 2.50-meter river size of the water tank of this case to be the 30-day river basin of the public waters of this case.

(2) The following circumstances are revealed by comprehensively taking account of the facts acknowledged as such, and the overall purport of the statement No. 22, namely, ① the appraisal result of Nonparty 2 of the relevant public waters and the repair account statement prepared by Nonparty 4 are the same as the design flood calculating method, but there is a difference in the calculation of the term “radic strength” which is one of the calculated factors, ② the river strength is one of the calculated factors, and ② the river strength is one of the calculated factors, ③ the river strength is one of the calculated factors, ③ the river strength is established for the purpose of calculating the entire water quality of the public waters, and the river basin design standard is established for the purpose of calculating the entire water quality of the public waters in order to prevent the river basin from occurring in the area where the river basin is located. On the other hand, Nonparty 4 established the river basin design standard for the purpose of calculating the total water quality of the public waters in order to prevent the river basin from occurring in the area where the river basin is located.

(3) As to this, the Plaintiff asserts that the reason that “the result of Nonparty 2’s appraisal by the trial appraiser is different from the content of the repair account statement submitted by the Plaintiff at the time of application,” which was presented by the Defendant, is not identical with that of the instant disposition, and thus, the ground for disposition cannot be changed as above.

However, in an appeal suit seeking the revocation of an administrative disposition, the agency may add or modify other grounds within the scope that are deemed identical to the original disposition, and the existence or absence of the basic facts here shall be determined based on whether the grounds for disposition are identical in basic social facts in light of the specific facts prior to the legal evaluation (see Supreme Court Decisions 2003Du8395, Dec. 11, 2003; 2004Du4482, Nov. 26, 2004, etc.). The grounds of “the difference between the repair account statement prepared by Nonparty 3 and the repair account statement submitted by the plaintiff at the time of application” which are the grounds of disposition in this case can be interpreted as “the plaintiff submitted the repair account statement which is erroneous in the contents at the time of application.” The grounds of “the difference between the appraisal result by Nonparty 2 and the repair account statement submitted by the plaintiff at the time of application of the plaintiff” can be interpreted as identical to the above grounds of disposition in this case.

○ The following shall be added to the 8th page 20:

2) Whether discretionary power has been exceeded or abused

A) An occupancy or use permit of public waters under the Public Waters Act is a disposition that grants a specific person the exclusive right to use public waters, and in principle, the determination of whether the relevant disposition is taken or the content thereof belongs to the discretion of an administrative agency. In a judicial review of such discretionary act, considering the room for public interest determination based on the discretion of an administrative agency, the court examines only whether the pertinent act is a deviation or abuse of discretion without drawing an independent decision. The examination of whether such discretionary power is deviation or abuse is subject to the determination of facts and violation of the principle of proportionality and equality (see, e.g., Supreme Court Decisions 2002Du5016, May 28, 2004; 2009Du1960, Feb. 25, 2010; 2014Du2164, Sept. 4, 2014).

B) Considering the above circumstances, the following circumstances are revealed when the Plaintiff submitted an account statement for repair of the public waters at the time of applying for the occupancy or use permit of the public waters of this case. (4) In other words, even if there were some errors in the process of calculating the water supply and use permit of this case in the design flood account statement submitted by Nonparty 4 at the time of applying for the occupancy or use permit of the public waters of this case, it seems that it is difficult to determine that the public waters of this case were to be used separately for the purpose of calculating the water supply and use permit of the public waters of this case, such as calculating the water supply volume of the public waters of this case, and the result of calculating the water supply capacity of the drainage conduits installed on the public waters of this case. (2) It is difficult to determine that the public waters of this case were to be used separately for the purpose of calculating the water supply and use permit of the public waters of this case.

○ 8 pages 21 through 9, and 12 pages 9-10 shall be deleted.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jong-tae (Presiding Judge)