(영문) 광주지방법원 2014.8.14.선고 2013구합11208 판결

1) On September 17, 2010, the Defendant approved the occupation and use of public waters as follows pursuant to Article 6 of the former Public Waters Management Act (amended by Act No. 10272, Apr. 15, 2010; hereinafter the same) to the Ganpo Ocean University on September 17, 2010.

Permission number: 2010-9 points for use: Place for the installation and use of a yacht course facility for license test: The area and the period area for use of the woodbridge, bamboo thicker, 571-98 Support Line Sheet, 571-98: The area and the period area: 250 square meters: from September 17, 2010 to September 16, 2013 (three years)

2) On April 5, 201, the Defendant changed the occupancy and use of public waters to the Ganpo Marine University pursuant to the Public Waters Management and Reclamation Act, with the following contents as follows.

For the purpose of occupation and use: The place where the yacht license examination and education business is installed and used: the area and the period of the use of the sea-line tamping point and use No. 571-98, Simpool 571: 1,278.8m period: from September 17, 2010 to September 16, 2013 (three years)

3) On July 24, 2013, the Defendant changed the occupancy and use of public waters to the Ganpo Marine University pursuant to Article 10(2) of the Public Waters Management and Reclamation Act as follows.

A certificate of change in the occupation and use of public waters

A person shall be appointed.

B. On July 24, 2013, the Korea Water-Related Leisure Safety Association and the Korea Water-Related Leisure Safety Association, and the Korea Water-Related Leisure Safety Association approved the occupancy and use of the Defendant’s public waters with the Korea Water-Related Leisure Safety Association, an incorporated association (hereinafter “instant Association”) entered into an agreement on exchange and cooperation on July 24, 2013. Part of the agreement is as follows.

Article 2 (Areas of Convention) The Parties shall mutually cooperate in the following fields in accordance with the principle of reciprocity:

He applied for approval to use public waters in relation to the occupation and use of public waters under the above A. 3, and on August 7, 2013, the defendant approved the occupation and use of public waters as follows pursuant to Article 8(8) of the Public Waters Management and Reclamation Act (hereinafter referred to as "the disposition of this case").

User: The approval period of the Jeonnam Branch of the Korea Water-Related Leisure Safety Association: from August 6, 2013 to July 23, 2014: comply with the purpose and conditions of approval for occupation and use of existing public waters;

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, 5-1, 2, 9-1, 3, and 8-1, 3, and 8-2, the purport of the whole pleadings

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

Although the plaintiff is not the other party to the disposition of this case, the plaintiff is a person who operates the operator license test site of Jeonnam-gu and engages in the same kind of business as the Association of this case, and a light business operator is not the other party to the disposition of this case, the plaintiff is entitled to seek revocation even if he is not the other party

The Defendant’s approval to jointly occupy and use the 1,278m2 (hereinafter “the public waters of this case”) 571-98m2 (hereinafter “the public waters of this case”) on the land surface 1,278m2 (hereinafter “the public waters of this case”) of the land surface 571-98 Gipo-si, Sejong-si, and the Association Jeonnam Branch before the Association of this case does not constitute a case where it is necessary for the public interest, such as for the purpose of public interest, national defense or the prevention of natural disasters, and thus, the disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

3. Determination on the defense prior to the merits

A. Defenses before the merits

1) An organization does not have standing to sue where it contests for membership.

The operation of the operator license test site for the Jeonnam-gu, which the Plaintiff asserts that the instant disposition and the competition business relations are permitted to the gold Leisure Association, not the Plaintiff, a member of the Plaintiff, and the Plaintiff does not have a direct legal relationship over the instant disposition, and the Plaintiff is not allowed to file a lawsuit on behalf of its members, and therefore, standing to sue is not allowed.

2) The Plaintiff was not legally and specifically infringed upon the instant disposition.

The Plaintiff and the Jeonnam Branch of the instant Association are entities that operate different projects subject to approval, and the waters occupied and used by the Plaintiff are inland waters, which are different from the sea waters of the instant public waters, so the Plaintiff is not an entity related to the instant association and the instant disposition.

In addition, Article 8 (8) of the Public Waters Management and Reclamation Act does not protect the interests of the same business owner individually and specifically.

Therefore, the plaintiff is not standing to sue because it is not a person subject to legal and specific interests under the disposition of this case.

B. Determination

1) Determination as to the defense that an organization does not have standing to sue in the event that the organization contests for its members

According to the statement and the purport of Gap evidence No. 13 as a whole, the plaintiff Jeonnam branch is designated by the Commissioner General of the Korea Coast Guard as an agency for general operator license test pursuant to Article 14 of the Water-Related Leisure Activities Safety Act and is being done as an agent for general operator license test in gold-gun, Namnam-gun, the lake and marsh 2 located in Jeonnam-gun.

According to the above facts of recognition, since the plaintiff himself/herself acts as an agent for general operator license examination, the lawsuit of this case is not a dispute for the gold Leisure Complex, a member of the plaintiff, but a dispute on the plaintiff's own position.

Therefore, the defendant's defenses based on the premise that the plaintiff is disputing for the plaintiff's member are without merit.

2) The plaintiff's defense that the disposition of this case is not a person legally and specifically infringed on an individual and specific interest

In full view of the written statements and the purport of the evidence Nos. 3 and 4, the Jeonnam Branch of the instant Association obtained approval from the Commissioner General of the Korea Coast Guard of February 1, 2013 for the institution exempt from the license test for yachts under Article 7(1)6 of the Water-Related Leisure Activities Safety Act and Article 7 of the Enforcement Decree of the Act. The instant Association recognizes the fact that the Jeonnam Branch of the instant Association was designated as an institution exempted from the license test pursuant to Article 7(1)6 of the Water-Related Leisure Activities Safety Act on August 26, 2013 and Article 7(5) of the Enforcement Decree of the Act, and the fact that the Plaintiff is a general operator license test agency is recognized as above.

According to the above facts, the plaintiff is an agency in charge of general lighting license examination, and the association of this case is exempt from general lighting license examination. Thus, even if the plaintiff is the appeal of waters occupied and used by the plaintiff and the surface of water used by others by the association of this case is different from that of the sea, the plaintiff and the association of this case are in a sort of competition business entity, and the association of this case can jointly occupy and use public waters occupied and used by the associations of this case due to the disposition of this case. Thus, the disposition of this case violates the freedom of competition by causing unfavorable competition to the plaintiff, which is a competition business entity

There is room for room. Since the freedom of competition is included in the freedom of occupation, which is a specific fundamental right, the plaintiff has standing to sue in the position of being infringed on legal and specific interests by the disposition of this case.

Therefore, this part of the defendant's defense is without merit.

4. Determination on the legitimacy of the disposition

Pursuant to Article 6 of the former Public Waters Management Act, the Defendant approved the occupation and use of public waters at the Ganpo Sea University and approved the modification thereof pursuant to Article 10(2) of the Public Waters Management and Reclamation Act. The instant disposition, which is approval for the occupation and use of public waters, was based on Article 8(8) of the Public Waters Management and Reclamation Act.

Article 8(1) of the Public Waters Management and Reclamation Act provides that a person who intends to occupy or use public waters shall obtain permission for occupancy or use of public waters from the management agency of public waters, and Article 10(1) of the Act provides that the State or a local government shall consult with the management agency of public waters or obtain approval from the management agency of public waters in cases where the State or a local government intends to directly occupy or use public waters for public use, public use, or non-profit projects. Therefore, Article 10, other than Article 8 of the same Act, applies where the State

However, Article 10 (8) of the Public Waters Management and Reclamation Act does not apply mutatis mutandis to Article 10 (3) of the Act on the Management and Reclamation of Public Waters. Article 8 (8) of the Act on the Management and Reclamation of Public Waters does not apply mutatis mutandis to cases where the State or a local government has consulted with the management agency of public waters or has obtained approval from the management agency of public waters to directly occupy and use public waters for the purpose of public use or non-profit business. In addition, Article 8 (8) of the Act on the Management and Reclamation of Public Waters does not apply mutatis mutandis to cases where Article 8 (6) and (7) of the Act on the Management and Reclamation of Public Waters applies mutatis mutandis to cases where Article 8 (8) of the Act on the Management and Reclamation of Public Waters and Article 8 (8) of the Act on the Management and Reclamation of Public Waters and Article 10 of the Act on the Management and Reclamation of Public Waters, which permits others to occupy and use or use for the purpose of public interest, since Article 10 of the Act first obtains approval from the State or a local government for public interest.

As to the instant case, the Ganpo Marine University obtained approval for occupation and use of public waters and approval for modification thereof pursuant to Article 6 of the former Public Waters Management Act and Article 10(2) of the Public Waters Management and Reclamation Act, Article 8(8) of the Public Waters Management and Reclamation Act cannot be applied in such cases. However, the Defendant rendered the instant disposition by applying Article 8(8) of the Public Waters Management and Reclamation Act.

Therefore, the instant disposition should be revoked in an unlawful manner.

5. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges

The presiding judge, the Park Judge;

Judges Park Sung-nam

Judges Shin Shin-il

Note tin

1) Although the date of disposition is indicated as July 24, 2013 by the date of disposition, the purport of claim No. 5 is stated as the date of disposition, it is stated as August 7, 2013.

is obvious that it is an instrument.

2) lakes and marshes are limited to public waters provided for in Article 2 subparagraph 1 of the Public Waters Management and Reclamation Act;

Inland Water Fisheries Act does not necessarily coincide with inland waters stipulated in Article 2 subparagraph 1 of the Inland Water Fisheries Act.