2014Du5118. Revocation of a final inspection on reclamation of public waters;

1. A lot shopping company;

2. A corporate hotel lot;

Busan Regional Maritime Affairs and Fisheries Office

Busan High Court Decision 2013Nu2365 Decided February 7, 2014

April 28, 2016

All appeals are dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 26 (1) 3 of the former Enforcement Decree of the 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 the reclamation licensee shall acquire the ownership on 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 project cost required for the reclamation work in question as determined by Presidential Decree shall be the sum of the investigation cost, design cost, net construction cost, compensation cost and other expenses (the total amount of investigation cost, net construction cost, compensation cost and other expenses) as of the date of application for the authorization of completion of the reclamation work," and Article 26 (1) 3 of the former Enforcement Decree of the Public Waters Reclamation Act provides that "the construction cost shall be calculated as one of construction compensation cost."

The court below cited the reasoning of the judgment of the court of first instance. ① The plaintiffs were to reclaim the construction cost of 12,772m2 at the central 72m2 in Busan Jung-gu, 200, and acquired a reclamation license from the defendant on December 24, 2002 under the former Public Waters Reclamation Act, and the replacement facilities for the North Korean 2m2 which ceases to exist due to reclamation of public waters (hereinafter referred to as the "alternative facilities of this case") were constructed on 40m2 in Busan-dong 7m2 in Busan-dong 1-2, 12,77m2, and the replacement facilities of this case 9m2 in Busan-dong 7m2 in order to implement the reclamation plan of the above 9m2, and the plaintiffs were to obtain the completion authorization of the reclamation plan of this case from the defendant 1, 207 and to secure the replacement facilities of this case from the non-management authority of this case on April 26, 2005.

The plaintiffs recognized only KRW 8,143,948,060 as the total project cost of the instant reclamation work, excluding the cost of the instant substitute facility construction, etc., and accordingly, acknowledged that the first of all, the Plaintiffs made a warning disposition prior to the completion inspection on reclamation of public waters (hereinafter referred to as the “instant modified disposition”) on the part of the reclaimed land that the plaintiffs agreed to acquire, with a view to reverting to the State on the 4,964 square meters of the reclaimed land that the plaintiffs agreed to revert to the State (hereinafter referred to as the “instant modified disposition”), and issued a disposition imposing the royalty of KRW 4,652,253,490 for the said land until September 30, 2011 from the date of the completion approval (hereinafter referred to as the “instant usage fee imposition disposition”).

In light of the relevant laws and regulations as seen earlier, the lower court determined that the instant alternative facility construction cost is not illegal on the ground that the instant alternative facility construction cost is not limited to the total project cost required for the instant reclamation work, and that the instant alternative facility construction cost is not limited to the cost directly related to the relevant reclamation work and the location and function when determining whether the specific cost is included in the total project cost of the reclamation work. Furthermore, since the instant alternative facility is constructed near the current water form and near the current water form and thus, it cannot be seen that the instant alternative facility construction cost is not related to the instant reclamation work, based on the following factors: (a) the instant alternative facility construction cost cannot be deemed to be excluded from the total project cost calculation; and (b) the instant alternative facility construction cost is not limited to the cost directly related to the instant reclamation work; and (c) the instant alternative facility is not related to the instant reclamation work; and (d) the instant alternative facility construction cost is not related to the existing water form and location; and (e) the instant alternative facility construction cost is not related to the instant reclamation work.

Examining the reasoning of the judgment below in light of the aforementioned provisions and related legal principles, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the interpretation of the total project cost required for the reclamation work, the interpretation of the license department of this case, and the disposition of the usage fee department.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok

Justices Kim Yong-deok

Justices Kim So-young

Justices Lee Dong-won