(영문) 부산고등법원 2014.2.7.선고 2013누2365 판결

2. On October 18, 201, the Defendant’s revocation of the change of the completion inspection on reclamation of public waters against the Plaintiffs on October 18, 201, and the Defendant’s appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

1. Purport of claim

The judgment as referred to in Paragraph (2) and the defendant's disposition of imposition of KRW 4,652,253,490 against the plaintiffs on October 18, 201 shall be revoked.

2. The purport of the plaintiffs' appeal

It is as set forth in paragraphs 1 and 2 of this Decree.

3. The defendant's purport of appeal

The part of the judgment of the court of first instance against the defendant is revoked, and the plaintiffs' counter corresponding to the revoked part is dismissed.

Reasons

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiffs' assertion

1) The assertion on the change disposition

A) Non-existence of the grounds for disposition

① The construction cost of the instant substitute facility falls under the cost required for the implementation of the instant license commander, and is of the nature as compensation for the North Korean vacant land lying in the public waters subject to reclamation. Therefore, it can be included in the total construction cost required for reclamation works.

② Article 26(1) of the Public Waters Reclamation Act that provides that the operator of the reclamation project of public waters acquires ownership of reclaimed land equivalent to total project cost is a mandatory law. Thus, if the contents of the instant reclamation license holder do not include the construction cost of alternative facilities in total project cost, it is invalid and invalid, and the modification disposition based on invalid additional plan is unlawful.

③ Therefore, the construction cost of the instant substitute facility is included in the total project cost required for reclamation works, and there is no defect in the initial completion disposition, and thus, the cause of the instant modification disposition is not recognized.

B) Non-existence of authority to change a disposition

(1) The authorization for completion of reclamation of public waters is a confirmation disposition that recognizes that a license holder with interest on the condition of suspension for the effect of reclamation license satisfies the requirements for acquisition of ownership of reclaimed land equivalent to total project cost, and the defendant has no authority to make a change in the status of reclamation of public waters, as long as there are no grounds under separate Acts and subordinate statutes.

② On September 21, 2008, the Defendant’s approval of completion of the instant reclamation license was granted to the Plaintiffs, and the status was left neglected until about three years after the completion of the instant reclamation license. As such, the Defendant’s right to change the original disposition was extinguished by the forfeited legal doctrine.

(3) The authorization of completion is only confirming whether the reclamation work has been executed in accordance with the license and implementation plan, and the total project cost is not determined, but the total project cost for reclamation of public waters is calculated in accordance with the Enforcement Decree of the Public Waters Reclamation Act and the Enforcement Decree of the same Act. Thus, the defendant has no legal authority to change the authorization of completion

④ Therefore, the Defendant did not have the authority to take the instant disposition for modification, and the said disposition for modification is unlawful.

C) Violation of the principle of trust protection.

① During the consultation process with the Plaintiffs, the Defendant expressed the view that the construction cost of the instant substitute facility is included in the project cost, and the Defendant’s public official B drafted a policy for the settlement of the project cost that includes the construction cost of the substitute facility in the total project cost, with the approval of the director, and expressed the Plaintiffs’ public opinion with the approval of the director.

② The Plaintiffs trusted the above statement of opinion, and invested a huge construction cost of KRW 34.1 billion in the installation of a substitute facility. The Defendant’s disposition of the instant change contrary to his/her official statement of opinion, thereby incurring damages equivalent to the said construction cost.

Therefore, the modification of the instant disposition is unlawful because it violates the principle of trust protection.

D) Violation of the principle of proportionality

The Plaintiffs spent a total of 42.4 billion won for the instant reclamation work (the reclamation work cost of KRW 8.3 billion + the replacement facility construction cost of KRW 34.1 billion) and acquired land equivalent to 48.8% of the total reclaimed land through the previous completion inspection. The Plaintiffs only acquired land equivalent to 9.4% of the total reclaimed land due to the instant change disposition, which is in violation of the principle of proportionality.

2) Claim on the disposition imposing user fees

A) The construction cost of the instant substitute facility is included in the total project cost required for the instant reclamation work. As such, the initial completion disposition is lawful, and the Plaintiffs were possessed after lawful acquisition of ownership of reclaimed land according to the said completion disposition.

B) In addition, the Plaintiffs are not obligated to refund royalties, as they are bona fide occupants of reclaimed land, because they have the right to receive negligence.

C) Therefore, the instant disposition imposing user fees based on a different premise is unlawful.

B. Relevant statutes

Attached 'Related Acts and subordinate statutes' are as listed in each of the relevant Acts.

C. Whether grounds for disposition exist

1) Contents of the laws and regulations relating to the calculation of total project cost

Article 26 (1) 3 of the former Public Waters Reclamation Act (amended by Act No. 7482 of Mar. 31, 2005; hereinafter referred to as the "former Public Waters Reclamation Act") provides that reclaimed land equivalent to the total cost of such reclamation work as determined by the Presidential Decree among reclaimed land except reclaimed land, the ownership of which is acquired by the State or a local government, shall be acquired as of the date when the reclamation licensee obtains authorization of completion under Article 25, and Article 20 (4) of the former Enforcement Decree of the Public Waters Reclamation Act (amended by Presidential Decree No. 19080 of Sep. 30, 2005; hereinafter referred to as the "former Enforcement Decree of the Public Waters Reclamation Act") provides that "the total cost of such reclamation work as determined by the Presidential Decree" refers to the total cost of investigation, design cost, net construction cost, compensation cost, construction cost and other expenses related to the reclamation work, etc. as of the date of application for authorization of completion of reclamation work."

2) Whether the Plaintiffs determined that the construction cost of alternative facilities should be fully borne by the licensing department, except for the calculation of the total project cost

A) Public waters reclamation license is an act of establishing a specific person’s right to obtain a reclamation license. In discretionary act, unless there is an explicit prohibition provision in the related Acts and subordinate statutes, additional clauses such as conditions, time limit, and burden may be attached to achieve the administrative purpose. The contents of the additional clauses are able to implement, proportional principles and the principle of equality, and it cannot be deemed unlawful as long as administrative disposition is not in violation of the essence of the administrative disposition (see, e.g., Supreme Court Decisions 2003Du12837, Mar. 25, 2004; 20089829, Oct. 29, 2009). If the pertinent additional clauses stipulate that the reclamation licensee should fully bear the construction cost of the instant substitute facilities except for the calculation of total project cost required for reclamation work, barring any special circumstance, the Plaintiffs are merely obligated to bear construction cost and cannot acquire the ownership of reclaimed land equivalent to the above construction cost.

B) The following facts can be acknowledged in light of the purport of the entire pleadings as seen in paragraph (1) or as indicated in the evidence Nos. 1-2, 3, 4, 30, 19-1, 2, 26-2, 2-2, 3, 4, 5, 3-11 through 14, 17-2, and 17-2, 2-3, 4, 3-5, 3-2, and 3-2 of the evidence No. 19-2, and 17. In light of these facts, there is doubt in the instant licensing authority that the Plaintiffs who obtained the reclamation license did not fully bear the construction cost of the instant substitute facilities except for the calculation of the total project cost required for reclamation works.

(1) On February 4, 2002, the Plaintiffs stated the total construction cost as KRW 6.6 billion in the application for a reclamation license submitted to the Defendant, and indicated the details of construction cost and financing plan of the instant substitute facilities in the financing plan attached thereto as “ separate equity capital”.

② From September 2002 to December 2 of the same year, the Plaintiffs and the Defendant discussed whether the construction cost of the instant substitute facilities was included in the total project cost. At the time of the above consultation, the Defendant had expressed an opposing position as to the inclusion of the said construction cost in the total project cost. The Plaintiffs and the Defendant did not reach an explicit agreement regarding the said matters prior to the addition of the instant license book.

③ On 10, 15, 202, Plaintiff Ringle shopping Co., Ltd. submitted supplementary materials related to the application for reclamation license of public waters to the Defendant, and the instant substitute facilities were built and completed and notified to the Defendant that they would transfer to the Defendant.

④ The documents of the Defendant’s “plan to secure the substitute site” written around December 16, 2002 indicate that the Defendant’s “plan to secure the substitute site” is intended to construct the substitute facility of this case with the Plaintiffs’ burden and responsibility.

⑤ On December 24, 2002, the Defendant granted a license to reclaim public waters to the Plaintiffs, and issued this letter of license. Article 10 of the above license book provides that “The above license book must install alternative facilities for the harbor facilities which cease to exist satisfy due to the satisfy of the North Korean empty port, and the replacement facilities shall be completed before the completion of reclamation of public waters and shall be reverted to the State.”

(6) On January 2, 2004, when the Defendant authorized the implementation plan for reclamation of public waters, it specified the total construction cost as KRW 5.72 billion, respectively.

7) On April 27, 2005, the Defendant notified the Plaintiffs of the purport that “this construction is to establish a replacement facility for the North Korean-developed water walk, the function of which is lost due to reclamation of public waters, so the facilities created shall belong to the State at the same time as the construction is completed and the investment cost shall not be compensated.”

④ On March 14, 2006, the Plaintiffs submitted to the Defendant a statement that calculated the total project cost as KRW 6,759,247,780 in total when submitting “the total project cost of the reclamation project of public waters and the performance guarantee for the restoration of public waters.” On July 10, 2007, the Defendant submitted a supplementary report for the calculation of project cost in 2005 and 2006 regarding the reclamation work of this case. Each of the above reports stated the total project cost as KRW 6,458,68,698, 6,465,126,505, or KRW 5,619,518, respectively. However, it is not reasonable to deem the Plaintiffs to have attached evidence of each of the above construction costs and the total construction cost of the reclamation license of this case, based on the premise that evidence of each of the above subparagraphs 30,42,46, 47, 58, 59, A, 31, 537, 16 through 16, 16.

① On February 4, 2002, the Plaintiffs’ financing plan attached to the application for reclamation license submitted to the Defendant is also indicated as “equity capital”.

In consultation on November 1, 2002 and 22th of the same month and 12th of the same year, and 12th and 12th of the same year, and whether the construction cost of the substitute facilities in this case with the defendant and the defendant should be included in the total project cost, the plaintiffs clearly express their opinions that "if the construction cost of the substitute facilities in this case is greater than the above construction cost (a approximately KRW 5 billion), if the construction cost of the substitute facilities is not recognized as the total project cost, there is no reason to obtain a reclamation license because it is larger than the profits gained from the acquisition of the reclamation license, and there is no reason to obtain a reclamation license, so if substitute facilities are necessarily necessary and the construction cost is charged to the plaintiffs, the reclamation license shall be recognized as the total project cost, and if the construction cost of the above substitute facilities

③ On November 1, 2002, the Defendant proposed a separate agreement to the effect that “the construction cost of the instant substitute facilities is excluded from the total construction cost incurred for the instant reclamation work.” However, there is no document or content in the Defendant’s “plan to secure a substitute site” or in the license additional clauses to the same effect.

(4) Around December 202, 2002, the plaintiffs' employees made consultations such as the above paragraph (1) and then prepared a report stating that "after the plaintiffs' opinions exist in terms of the fact that the plaintiffs' opinions are legally based and excessive burden on private enterprises, the replacement facilities construction costs of this case were to be considered as total project cost." Article 10 of the License Division of this case provides that "The construction cost of the substitute facilities of this case shall be appraised prices of port facilities which are locked by the installation of the substitute facilities and the construction cost of the substitute facilities." (If the plaintiffs fully bear the construction cost of the substitute facilities of this case, it is reasonable to interpret that the above construction cost shall be included in total project cost, because there is no reason to specify the construction cost of the substitute facilities and it is anticipated that the above construction cost should be included in total project cost).

⑤ On May 27, 2008, the Plaintiffs applied for authorization for the completion of the instant reclamation work with a specific amount of KRW 3,040,362,105 as the initial total construction cost, KRW 5,726,60,000, and KRW 33,040,362,105, and the settlement total construction cost. On September 22, 2008, the Defendant presented other opinions to the Plaintiffs on including some of the costs in the total construction cost, and issued authorization for the completion of the instant reclamation work with a specific amount of KRW 42,479,897,200, by deducting only the total construction cost from the total construction cost.

① Around October 2009, the Defendant submitted to the Board of Audit and Inspection a written answer to the following purport during the audit process on the instant reclamation works, authorization of completion, etc.

The phrase "to bear and assume the burden of a defect" in Article 10 of the License Division of this case means that it is normally used at the time of giving an additional authority related to reclamation of public waters, and where it is necessary not only to substitute facilities due to reclamation work of this case but also to construct roads, etc., it is clearly stated that it should be completed at the expense of the license holder first and on the premise of reflecting the total project cost for the installation

○ The phrase “this project is a construction of substitute facilities for a North Korean-developed water boom, the function of which is lost due to reclamation of public waters, so the facilities created are bound by the State at the time of completion pursuant to the provisions of Article 17(1) of the Harbor Act, and the investment cost is not to be covered by the Act.” The phrase “a substitute facility construction cost shall not be covered by the Act.” The phrase “a substitute facility construction cost shall not be covered by the Act on the Public Waters Reclamation in order to prevent a person from claiming the right to operate the substitute facility from claiming the right to operate the substitute facility after completion of construction.” It does not mean that

8) B, and C, a public official of the Defendant who was involved in the reclamation license and authorization of completion of the instant reclamation work, made a statement or assertion to the effect that the construction cost of the instant substitute facilities was the total project cost when the contents of the instant license subordinate officer were determined in the audit process by the Board of Audit and Inspection around November 2009, and around October 201 of the same year, at the Central Disciplinary Committee’s disciplinary proceedings, around February 201, the construction cost of the instant substitute facilities was recognized as the total project cost. However, there is no other public official of the Defendant who made a statement or assertion to the effect that it conform

① The Plaintiffs, on March 5, 1998, obtained the authorization of the implementation plan for the urban planning project for the 2nd round construction project in Busan, and on November 11, 200, obtained the construction permission for the 2nd round construction project in Busan, and the appraised price of the 112,656,680 won in the 2nd round reclamation site that ceased to exist due to the instant reclamation work (the amount recognized as the expenses incurred in performing the construction of the substitute facilities at the time of the authorization of completion) was entirely borne by the Plaintiffs (the amount recognized as the expenses incurred in performing the construction of the 32,289,270,443 won in the construction of the instant substitute facilities at the time of the authorization of completion).

① According to Article 17(1) and (3) of the former Harbor Act (amended by Act No. 8379 of Apr. 11, 2007), a non-management authority may gratuitously use the harbor facilities created or lost by its own harbor works and reverted to the State or a local self-owned organization within the scope of the total project cost. However, on April 27, 2005, the Defendant notified the Plaintiffs that the instant substitute facilities do not make up for the investment cost on the ground that the instant substitute facilities are substitute facilities for the North Korean Public Waters Reclamation Act (see, e.g., Supreme Court Decision 8379, Apr. 11, 2007).

① There were many cases where the Defendant and other local maritime port offices calculated total project cost including the cost of implementing the matters, even in cases where the Defendant and other local maritime port offices previously determined another business entity to implement the reclamation license of public waters with "responsibility and burden (or cost) of the licensee" in the vice-section.

3) Whether the construction cost of substitute facilities is included in the total project cost

A) In light of the contents of the pertinent laws and regulations, all expenses incurred in the performance of the reclamation license additional officer are, in principle, included in the total project cost required for the reclamation work, and in the instant license additional officer explicitly stated that the Plaintiffs should construct the instant alternative facility, and the said license additional officer did not provide that the Plaintiffs should fully bear the construction cost of the said alternative facility and exclude it from the calculation of the total project cost. Thus, barring any special circumstance, the construction cost of the said alternative facility should be deemed to be included in the total project cost required for the reclamation work of this case.

B) On this premise, the Defendant asserts to the effect that the total project cost is required for calculating reclaimed land acquired by a reclamation licensee of public waters under Article 26(1)3 of the former Public Waters Reclamation Act, and that the construction cost of substitute facilities of this case constructed in a place separate from the reclamation work pursuant to a separate statute of the Harbor Act should be limited to the part related to the reclamation work in question, location, and function. Thus, it cannot be deemed that the construction cost of substitute facilities of this case, which is constructed in a place separate from the reclamation work, is directly used for the reclamation work of this case. Thus, it cannot be deemed that the construction cost of substitute facilities of this case cannot be deemed to be directly used for the reclamation work of this case.

However, as seen earlier, Article 20(4) of the former Enforcement Decree of the Public Waters Reclamation Act provides that the aggregate of the research cost, design cost, net construction cost, compensation cost, and other expenses, construction interest by process, profit, and other expenses shall be the total project cost. Therefore, in determining whether a specific cost is included in the total project cost required for the reclamation work, it is not strictly related to the reclamation work in question, as alleged by the Defendant, as argued by the Defendant.

Moreover, since the instant substitute facility is replaced by the North-developed land that is lost due to the instant reclamation work, it is constructed in the vicinity of the Busan-dong Busan-dong Busan-dong Busan-dong Sewage Terminal, which is relatively similar to the existing water intake place, it is also related to the reclamation work of this case and the location and functions of the instant substitute facility.

Therefore, it cannot be said that the construction cost of the substitute facility is not related to the above reclamation work on the ground that there is a certain distance between the place where the substitute facility was constructed and the site of the reclamation work of this case. Thus, the defendant's above assertion cannot

D. Sub-determination

Ultimately, since the construction cost of the instant substitute facility is included in the total project cost required for the instant lusing construction, the modification disposition and the imposition of user fees, which are the grounds for the disposition that the said construction cost is not included in the total project cost, are unlawful without considering the different arguments of the Plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claim of this case should be accepted in its entirety because it is well-grounded, and since the part against the plaintiffs in the judgment of the court of first instance against the alteration of this case is unfair, it is revoked, and the above alteration portion is revoked, and the part on the imposition of shower fee in the judgment of the court of first instance as to the imposition of shower fee should be maintained as it is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as