[1] The meaning of occupation and use of a river or public water under the River Act and the Public Waters Management Act and the legal nature of the disposition imposing occupation and use fees (=administrative disposition)

[2] The requirements and criteria for determining a defective administrative disposition to be null and void as a matter of course

[3] The case holding that if the management agency of a sub-road establishes a connecting passage to the airspace above the road and injures the occupation and use of the road and impose the occupation and use fees on the person occupying and using the road, and such defect is grave and obvious and thus null and void

[4] The case holding that where the disposition imposing river occupation and use fees is to be returned in unjust enrichment as the disposition imposing river occupation and use fees is null and void per annum, the subject of the duty to return shall be the local government belonging to

[1] The term "the occupation and use of a river or a public water surface under the River Act and the Public Waters Management Act means the so-called special use of a river or a public water surface for a specific purpose in a tangible and solid manner, separate from the general use of a river or a public water surface. Thus, the imposition of occupation and use fees for such special use constitutes an administrative disposition that imposes an obligation under the public law and is subject to appeal litigation.

[2] In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law, and its purpose, meaning, function, etc. should be examined from a teleological perspective to determine whether the defect is significant and obvious. At the same time, in a case where an administrative disposition was taken by applying a certain provision to a certain legal relationship or factual relationship, and where a certain provision of the law is applied to a certain legal relationship or factual relationship, it is clearly stated that the legal principle that the provision of the law cannot be applied to such legal relationship or factual relationship, and thus, if there is room for dispute over the interpretation because the legal principles that the provision of the law cannot be applied to such legal relation or factual relation clearly show, it is obvious that the defect is merely a mistake of the fact that the administrative disposition was taken by the administrative agency, and thus, it cannot be said that it is evident that the defect is significant and obvious, or that there is no objective error in the factual relation or factual relation, which can only be mistaken for an objective disposition.

[3] The case holding that if the management agency of a ductal road establishes a connecting passage to the airspace above the road and injures the occupation and use of the road and imposes the occupation and use fees on the person occupying and using the road, the defects of which are significant and apparent

[4] The case holding that even if the disposition of the fees for occupation and use of a road, other than the fees for occupation and use of a road, is null and void a year, the fees for occupation and use under the above disposition shall be the revenue of the local government to which the river management agency belongs, so even if the fees for occupation and use of a road shall be returned in unjust enrichment, the person liable for the duty to return shall

[1] Articles 33(1) and 38 of the River Act, Articles 5(1) and 9 of the Public Waters Management Act, Article 2 of the Administrative Litigation Act / [2] Article 19 of the Administrative Litigation Act / [3] Article 38 of the River Act, Article 9 of the Public Waters Management Act, Article 40(1) of the Road Act, Article 19 of the Administrative Litigation Act / [4] Article 38 of the River Act, Article 43 of the Road Act, Article 741 of the Civil Act

[1] Supreme Court en banc Decision 89Nu23022 delivered on February 13, 1990 (Gong1990, 641) Supreme Court Decision 90Nu885 delivered on April 9, 1991 (Gong1991, 1387) Supreme Court Decision 2002Du5795 Delivered on October 25, 2002 (Gong2002Ha, 2892) / [2] Supreme Court Decision 94Nu4615 Delivered on July 11, 1995 (Gong195Ha, 263), Supreme Court Decision 95Da46722 delivered on May 9, 199 (Gong197Sang, 1719), Supreme Court Decision 200Du463631 delivered on December 26, 203 (Gong196364, May 26, 200).

Jin Industrial Co., Ltd. (Attorney Park Jin-soo, Counsel for the plaintiff-appellant)

Yongsan-gu Seoul Metropolitan Government (Attorney Yellowdo-do, Counsel for defendant-appellant)

Seoul High Court Decision 2002Na9617 delivered on October 24, 2002

Of the lower judgment, the part against the Defendant regarding the return of unjust enrichment for the occupation and use fees of 1999 and the part against the Defendant regarding delay damages during the return of unjust enrichment for the occupation and use fees of 2000 shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The Plaintiff’s appeal

We examine the grounds of appeal.

1. The lower court, citing the first instance judgment, recognized the following facts.

A. The river of Yongsan-gu Seoul ( Address 1 omitted) is divided into a river of 5,126.9 square meters (round March 26, 1969, hereinafter referred to as the "river of this case") and is used as a road under urban planning (hereinafter referred to as the "road of this case"), which is a public water owned by the State, around January 1, 1970, and is used as a road under urban planning. On July 19, 1969, it was used as a solvents market and was closed in accordance with the Yongsan-gu City Development Plan on June 19, 1985, and after the implementation of the urban planning project, an electronic equipment distribution complex (use electronic store) was formed.

B. On June 1987, the Plaintiff set up a commercial building on both sides of the river of this case, while building three ground passages connecting both sides of the river of this case (6.2m connecting 17 Dong and 19 Dong x 6.2m connecting 29.74m x 2, 10 Dong and 12 Dong x 6.2m connecting 30.6m x 59.0m m2, total area of 30.6m x 559m m2, and hereinafter referred to as the “connection passage of this case”).

C. On October 21, 1987, the plaintiff newly constructed the connecting passage of this case and recommended the reduction of or exemption from the occupation fees to the defendant. On October 21, 1987, Seoul Special Metropolitan City instructed that "the connecting passage of this case is a facility on the road, so it shall be donated at the time after completion, and it shall be exempted from the occupation fees when it is allowed to use the road for 24 hours in lieu of the land bridge." On November 11, 1987, the defendant sent a reply to the above purport to the plaintiff, but the plaintiff did not accept the connecting passage of this case.

D. On January 1, 1999, the Plaintiff obtained permission to occupy and use a river for the installation of the connecting passage of this case from the Defendant (the term the head of the Defendant’s Gu) and renewed the permission every year from 1992 to December 31, 1998, and even around January 1, 1999 to December 31, 2001, the period of occupation and use applied for permission to occupy and use a river with the period from January 1, 1999 to December 31, 2001. On February 1, 1999, the Defendant maintained the Plaintiff’s permission to occupy and use a road for a period of 559 square meters from January 1, 199 to December 31, 201.

E. Meanwhile, on October 1, 1991, the Defendant received a direction from the Seoul Special Metropolitan City on the part of the construction department to the effect that "as a result of questioning on the construction department, each Gu received the reply from the Seoul Special Metropolitan City to collect the fees for occupation and use of the roads on the opening of the river at the time of permission for occupation and use."

F. The Plaintiff paid the Defendant’s occupation and use fees from March 28, 1996 to March 200. The occupation and use fees paid from March 28, 1996 to March 200 are KRW 55,35,90, KRW 60,875,100 on March 31, 1997, KRW 67,875,700 on March 31, 1998, KRW 70,00 on March 31, 1999, KRW 70,434,00 on March 31, 199, KRW 68,421,60 on March 30, 200, and each of the above occupation and use fees is calculated and adjusted in accordance with the criteria and formula stipulated in the Seoul Special Metropolitan City Ordinance on Collection of Occupancy Fees, etc. in Public Waters or the Ordinance on Collection of Occupancy Fees, etc. in Public Waters, respectively.

2. Judgment on the Plaintiff’s grounds of appeal

A. As to the first ground for appeal

The term "the occupation and use of a river or a public water under the River Act and the Public Waters Management Act" means the so-called special use of a river or a public water for a specific purpose, in addition to the general use of a river or a public water for a specific purpose (see, e.g., Supreme Court Decisions 89Meu2302, Feb. 13, 1990; 90Nu8855, Apr. 9, 1991; 2002Du5795, Oct. 25, 2002). The imposition of occupation and use fees for such special use constitutes an administrative disposition that imposes an official duty under the Public Act and is subject to appeal litigation (see, e.g., Supreme Court Decision 81Meu998, May 25, 1982).

By citing the judgment of the court of first instance, the court below determined that the legal nature of the permission for occupation and use of the public property, which is administrative property, and the disposition of imposition of occupation and use fees, cannot be seen as a contract or a request for performance under private law, such as lending of state-owned miscellaneous property and payment notice thereof. The above judgment of the court below is just in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to mistake of facts or administrative disposition

B. Regarding ground of appeal No. 2

In order to become null and void a defective administrative disposition, the defect must be objectively obvious as it violates the important part of the law. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the specificity of the specific case itself (see Supreme Court en banc Decision 94Nu4615 delivered on July 11, 1995). If an administrative agency takes an administrative disposition by applying a certain provision of a law to a certain legal relation or factual relationship, it is clearly stated that the legal principle in which the provision of the law cannot be applied to such legal relation or factual relationship is clearly stated that if an administrative agency takes the disposition by applying the above provision, and there is no room for dispute over the interpretation thereof, it is obvious that the defect is significant and obvious, but it cannot be said that the defect is merely erroneous as to the requirement of the administrative disposition, and it is evident that there is no obvious and objective error in the legal relation or factual relation that the administrative disposition cannot be applied to the person who becomes the object of the administrative disposition.

The court below accepted the judgment of the court of first instance and held that the river of this case is occupied and used by the defendant (the defendant), who is a natural object, since the river of this case was reconstructed around January 1, 1970 and opened the road of this case on its ground, and the river of this case, which is a natural object, is occupied and used by the defendant, who is the management agency of the river of this case. On June 1987, the plaintiff installed the connecting passage of this case on the ground of the road of this case, which is a public object, and it is reasonable to consider that the road of this case is occupied and used by the road of this case. Since the provision on occupation and use fees of the Road of this case under the Road Act is applied mutatis mutandis pursuant to Article 10-2 of the Enforcement Decree of the Road Act and the Road Act, it is clear that the defendant should be imposed on the plaintiff according to the calculation method of the "Ordinance on occupation and use fees of the river of this case" established pursuant to the Road Act and the Enforcement Decree of the same Act, and it should not be applied to the river occupation fees of this case.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records and the above legal principles, the above fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the mistake of facts due to the violation of the rules of evidence or the invalidation of administrative disposition. The plaintiff's ground of appeal

C. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below held that the plaintiff's assertion that the method of adjustment stipulated in Article 5 of the "Seoul Metropolitan Government Ordinance on the Collection of Occupancy and Use Fees for the 1999 and the 2000s Ordinance should be applied to the calculation of the road occupation and use fees for the 1999 and the 2000s connecting passage of this case since the imposition of occupation and use fees for the 1999 and the road occupation and use fees for the 1999 and the 2000s newly calculated amounting to a decrease compared to the previous year is without merit. In light of the records, the court below's above fact-finding and determination of the court below is just and acceptable, and there are no errors in the misapprehension of legal principles as to the mistake of facts or the interpretation of the above Ordinance due to the violation of the rules of evidence, etc.

3. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

The court below cited the judgment of the court of first instance. Since the river of this case was reconstructed on January 1, 1970 and the road of this case was constructed and managed by the defendant (the defendant's head of the Gu) on the ground, the river of this case, which is a natural object, is occupied and used by the defendant, who is the managing agency of the above road, and the plaintiff is occupying and using the above road by installing the connecting passage of this case on the ground of the above road, which is a natural public object, around June 1987. In light of the records of the judgment of the court of first instance as cited by the court below and the judgment of the court of first instance, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the interpretation of Article 2 of the Public Waters Management Act. The defendant's ground of appeal on this point is not acceptable.

B. Regarding ground of appeal No. 4

The court below cited the judgment of the court of first instance on the premise that the plaintiff is occupying the above road by installing the connecting passage on the ground of the road of this case on June 1987, and on the premise that the defendant (the defendant's head appears to be the head of the Gu) did not impose the fees for occupancy and use on the plaintiff according to the calculation method prescribed in the Road Act and the Enforcement Decree of the Road Act, and under the premise that the plaintiff occupies and uses the river of this case from 1996 to 2000, the court below imposed the fees for occupancy and use of the road of this case according to the Seoul Special Metropolitan City Ordinance on the Collection of Occupancy and Use Fees of Public Waters or the Seoul Special Metropolitan City Ordinance on the Collection of Occupancy and Use Fees of Public Waters, etc. of Public Waters, and imposed the fees for occupancy and use of the public waters of 20 years from 199 to 200, and thus it is clear that the defendant imposed the fees for occupancy and use of the public waters of 559 square meters on the land of this case on the ground of this case from 190 years to 190.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the legal principles as to the records of this case and the criteria for determining the invalidity of administrative disposition as seen earlier, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of facts due to violation of the rules of evidence or misunderstanding of legal principles as to the invalidity of administrative disposition as to the mistake of facts

C. As to the grounds of appeal Nos. 2 and 3

According to the reasoning of the judgment below, the court below held that the defendant (which appears to refer to the head of the Gu) imposed the fees for the occupation and use of the river of this case on the plaintiff due to the construction of the connecting passage of this case is in accordance with the delegation of the authority to collect the river of this case, and therefore, the plaintiff's claim that the defendant's claim for the return of unjust enrichment on the premise of the defendant's interest is unfair since all the fees for the occupation and use of this case belong to Seoul Special Metropolitan City, and since the defendant did not gain any profit, it is reasonable to view that the defendant is occupying and using the road of this case by installing the connecting passage of this case on the ground of the road of this case, which is the public property of this case. According to Article 73 (2) of the Road Act and Article 73 (2) of the Road Act, the road management agency's usage and use fees for the road of this case should be the revenue of the local government to which the management agency belongs. Thus, the judgment of the court below is without merit.

However, even if the Defendant’s imposition of occupation and use fees in 1999 and 2000 is null and void, the Plaintiff’s occupation and use fees are paid as the revenues of the local government belonging to the management agency of the river of this case. Thus, even in a case where the Defendant’s imposition of occupation and use fees in 199 and 2000 are to be returned as unjust gains, the subject of the duty to return should be the local government belonging to the management agency of the river of this case, and the local government belonging to the management agency of this case cannot be the subject of the duty to return. Thus, the lower court determined that the Defendant is liable to return unjust gains on the ground that it

However, Article 3 of the former Public Waters Management Act (amended by Act No. 5914, Feb. 8, 199; hereinafter referred to as the "former Act") which appears to apply to the river of this case provides that public waters other than those falling under any of the subparagraphs shall be managed by the Special Metropolitan City Mayor, Metropolitan City Mayor, and Do governor (hereinafter referred to as the "local management agency"), and Article 7 (2) of the same Act provides that the fees for occupation or use for the permission of the local management agency shall be regarded as the revenue of the relevant local government. Thus, the river of this case does not fall under any of the subparagraphs of Article 3 of the same Act. Thus, the river management agency of this case shall be deemed to be the head of Seoul Special Metropolitan City and the fees for occupation or use of the river of this case

In addition, according to Article 5 (1) [Attachment Table] of the Seoul Special Metropolitan City Ordinance on Delegation of Administrative Authority (amended by Ordinance No. 1950 of December 8, 1984), the affairs concerning permission to occupy and use public waters under Article 4 of the Public Waters Management Act are delegated to the head of the Gu, and according to Article 7 of the Seoul Special Metropolitan City Ordinance on the Collection of Occupancy and Use Fees, etc. of Public Waters (amended by Ordinance No. 3234 of November 20, 1995), the affairs concerning the collection of "the affairs concerning permission to occupy and use public waters, etc." and "the affairs concerning the collection of occupation and use fees, etc. of public waters" are delegated to the head of the Gu. Thus, in the case of delegation of authority between the heads of local governments, the head of the subordinate local government delegated with the delegation of authority among the heads of local governments shall be deemed to have the status of the river management authorities in this case, regardless of the above delegation of authority.

Therefore, the Act before the amendment applies to the occupation and use fees for the year 199 that was imposed and paid at the time of the enforcement of the above Act before the amendment, and the occupation and use fees for the river that the Plaintiff paid shall become the revenue of the Seoul Special Metropolitan City Mayor where the head of the Seoul Special Metropolitan City Office, which is the management agency, belongs. Therefore, in seeking the return of the above occupation and use fees for the unjust enrichment, the claim shall be filed against Seoul Special Metropolitan City, which is the person to whom the interest accrued, and only the right to

Therefore, the court below should have deliberated on the issue of which local government's occupation and use fees paid by the plaintiff in 199 were the revenue of the defendant, and determined that the defendant had the obligation to return unjust enrichment to the defendant for the 1999 occupation and use fees. The court below erred by misapprehending the legal principles on the return of unjust enrichment and the interpretation of Articles 3 and 7 of the Act before the amendment, which affected the conclusion of the judgment. Thus, the defendant's ground of appeal pointing this out is with merit.

Meanwhile, Article 4 of the current Public Waters Management Act (amended by Act No. 5914, Feb. 8, 199; hereinafter referred to as the "amended Act") provides that public waters other than those stipulated in each subparagraph shall be managed by the head of Si/Gun/autonomous Gu, and Article 9 (2) of the same Act provides that occupancy and use fees under the permission of the head of Si/Gun/autonomous Gu shall be the revenue of the relevant local government. Thus, after August 9, 1999 when the amended Act enters into force, the management agency of the relevant river of this case shall belong to the defendant's revenue. Thus, the defendant bears the duty to return it as unjust enrichment, since it is imposed and paid after the amended Act enters into force.

Therefore, the court below's decision that the defendant bears the obligation to return the occupation fees for 2000 as unjust enrichment is just, and the above illegality does not affect the conclusion of the judgment. The ground of appeal in this part is without merit.

4. Ex officio determination on damages for delay

The portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings before the Amendment (amended by Act No. 6868 of May 10, 2003, hereinafter referred to as the "former Litigation Promotion Act") was decided as unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the above amended provisions of the Act and the provisions of the main sentence of Article 3 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall apply at the statutory interest rate of two percent per annum after June 1, 2003. Thus, the court below accepted damages for delay with 25 percent per annum under the previous Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, thereby affecting the conclusion of the judgment.

5. Conclusion

Therefore, among the judgment of the court below, the part against the defendant as to the return of unjust enrichment for the occupation and use fees of 1999 and the part against the defendant as to delay damages during the return of unjust enrichment for the occupation and use fees of 2000 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's appeal and the defendant's remaining appeal shall be dismissed. It is so decided as per

Justices Kim Yong-dam (Presiding Justice)