[1] Meaning of Article 30 (1) 3 of the former Public Waters Management and Reclamation Act (amended by Act and subordinate statutes) and, in such a case, where reclamation is required for a project eligible for the expropriation or use of land pursuant to the relevant Act and subordinate statutes, whether the pertinent project requires “project approval” under Article 20 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects at the reclamation license stage (negative)

[2] The purport of the former Harbor Act’s provisions on various legal fictions and compensation for losses in accordance with the procedures for implementing harbor works, and the applicable law to compensation for losses arising from harbor works that involve reclamation of public waters

[1] In light of the contents and form of Article 30(1) of the former Public Waters Management and Reclamation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Public Waters Management Act”), systematic relationship between the reasons under each subparagraph of Article 30(1) of the former Public Waters Management Act, and the former Public Waters Reclamation License under the Public Waters Management Act is merely the first phase of reclamation procedure, etc., “where reclamation is necessary for a project eligible for expropriation or use of land pursuant to the relevant Acts and subordinate statutes” under Article 30(1)3 of the former Public Waters Management Act, “where reclamation is required for a project eligible for expropriation or use of land pursuant to the relevant Acts and subordinate statutes” refers to cases where reclamation license of public waters is deemed necessary for the implementation of a project included in the scope of “public works” under Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”). At the pertinent phase, reclamation license of public waters is not required.

[2] The purport of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter “former Harbor Act”) stipulating various legal provisions and compensation for losses arising from the procedures for the implementation of a harbor project is to ensure the smooth progress of a harbor project by ensuring that the relevant authorization and permission and approval of a project are immediately deemed lawful according to the procedures in accordance with the characteristics of the harbor project, which are bound to be implemented as a “public works” under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), and to guarantee the legitimate compensation for owners of land and fishery rights, etc. who have no choice but to incur losses regardless of their intent through the implementation of the harbor project.

The purport and purpose of the provisions of the former Harbor Act, the form and contents of the provisions of the former Harbor Act and the former Act on the Management and Reclamation of Public Waters (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Public Waters Management Act”) and the public waters reclamation project under the former Public Waters Management Act do not restrict the subject and purpose of the project. Thus, the public waters reclamation project under the former Public Waters Management Act can be implemented not only for public projects by administrative entities but also for private interest projects by private economic entities. The former Public Waters Management Act does not stipulate the reclamation project itself as “public projects” under the Public Waters Management Act, and thus, the compensation for losses under the former Public Waters Management Act is premised on the maintenance of the right to use and use public waters existing. On the other hand, the compensation for damages under the former Public Waters Management Act can no longer be maintained in lieu of the existing public waters occupancy and use relationship with the public waters under the former Harbor Act. According to the former Public Waters Management Act, the public waters reclamation project implementation plan and the implementation plan under the former Public Waters Management Act should not apply to the public waters.

[1] Article 30(1) of the former Public Waters Management and Reclamation Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 4 and 20(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 38(1) and (3) of the former Public Waters Management and Reclamation Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 9(6), 77(2) and (3), 80(6), and 85(1) of the former Harbor Act (Amended by Act No. 11594, Dec. 18, 2012);

Plaintiff 1 and two others (Attorney Kang Byung-chul, Counsel for the plaintiff-appellant)

Jeju Special Self-Governing Province Governor (Attorney Do governor, Counsel for defendant)

Gwangju High Court ( Jeju) Decision 2013Nu40 decided October 16, 2013

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. As to the procedure for consultation on various kinds of authorization and permission and whether substantive requirements are satisfied, which are deemed granted according to the public notice on the execution of harbor works on September 4, 2012 (hereinafter “public notice of this case”).

A. As to the reclamation license of public waters

(1) Whether consultation with the head of the relevant administrative agency should be followed

Article 85(1)5 of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter “harbor”) provides that where the Minister of Land, Transport and Maritime Affairs publicly announces the fact of implementation of a harbor project pursuant to Article 9(6) of the Harbor Act, he/she shall be deemed to have obtained permission to occupy and use public waters under Article 8 of the Public Waters Management and Reclamation Act, a license to reclaim public waters under Article 28, and approval for an implementation plan to reclaim public waters under Article 38, and shall be deemed to have been publicly announced or publicly announced. Article 85(3) of the Harbor Act provides that when the Minister of Land, Transport and Maritime Affairs directly executes a harbor project pursuant to Article 9 of the Harbor Act, he/she shall consult with the head of the relevant administrative agency in advance where the above-mentioned matters, such as authorization and permission, are included.

Meanwhile, Article 144(1) of the former Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City (amended by Act No. 11690, Mar. 23, 2013; hereinafter “the Special Act on Jeju-do”) provides that the authority of the Minister of Oceans and Fisheries shall be transferred to the Governor of Jeju Special Self-Governing Province (hereinafter “Do Governor”)’s inherent authority. Article 144(2) of the former Special Act on the Establishment of Jeju Special Self-Governing Province and the Development of Free International City provides that public waters inside the harbor zone of trade ports shall be transferred to the authority.

In addition, Article 2 of the Jeju Special Self-Governing Province Ordinance on the Delegation of Administrative Affairs (hereinafter referred to as the "Ordinance on the Delegation of Administrative Affairs") stipulates that the authority of the Do Governor under Article 2 may be delegated to the head of the subordinate administrative agency, and Article 3 (3) [Attachment 3] delegates only the authority of "small-scale reclamation performed by the State, etc." as provided for in Article 36 of the Public Waters Management and Reclamation Act among the authority of the Do Governor on the reclamation of public waters,

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below acknowledged the fact that the director of the Jeju Special Self-Governing Province Maritime Affairs and Port Development division in charge of the matters concerning the designation and public announcement of harbor facilities in relation to the construction of harbor facilities takes charge of the affairs related to the reclamation of public waters in the harbor. The court below determined that the public notice of this case made without such procedure did not constitute an error in the procedure of consultation as stipulated in Article 85 (3) of the Harbor Act, since it did not require separate consultation with the head of other administrative agencies including the Jeju market, inasmuch as the defendant has the authority to do so with respect to the construction of this case, not small

Examining the reasoning of the judgment below in light of the above legal contents and records, the judgment of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, and misapprehension of legal principles as to whether the consultation procedure under Article 85 (3) of the Harbor Act is complied with

(2) Whether the pertinent authorization or permission satisfies the substantive requirements

Article 30(1) of the former Public Waters Management and Reclamation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Public Waters Management Act”) provides that “if a person has a right to the public waters in a predetermined land to be reclaimed and a zone in the vicinity of the predetermined land to be reclaimed for which damage is expected due to reclamation, the reclamation authority shall not grant a reclamation license except for any of the following cases.” In each subparagraph, “if a person holding a right to the public waters reclamation consents to the reclamation and a reclamation is deemed to have fully taken into account the changes in the environment and ecosystem” ( Subparagraph 1), “where the benefit from the reclamation significantly exceeds the loss,” “where a reclamation is necessary for a project eligible for expropriation or use of the land pursuant to the Acts and subordinate statutes ( Subparagraph 3),” and “other cases prescribed by Presidential Decree as necessary for public interest, such as national defense or disaster prevention, etc.” ( Subparagraph 4).

In light of the contents and form of the provisions of this Act, systematic relationship between the reasons under each subparagraph of Article 30(1) of the Public Waters Management Act, and the license for reclamation of public waters under the Public Waters Management Act is merely the first phase of the procedure for reclamation of public waters, etc., the term “where reclamation is necessary for a project eligible to expropriate or use land pursuant to the relevant Acts and subordinate statutes” under Article 30(1)3 of the Public Waters Management Act refers to cases where reclamation of public waters is deemed necessary for the implementation of a project included in the scope of “public works” under Article 4 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”), and the reclamation license does not require “project approval” under Article 20(1).

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its holding, and determined that the instant harbor project satisfies the substantive requirements for the reclamation license of public waters deemed to be applicable to the instant public waters, on the ground that it is necessary to reclaim public waters for the implementation of the project as “public works” as stipulated in Article 4 of the Public Works Act, and thus constitutes Article 30(1)3 of the Public Waters Management Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to substantive requirements for reclamation license

B. Regarding approval of reclamation implementation plan of public waters

(1) Whether consultation with the head of the relevant administrative agency should be followed

As seen in paragraph (1) above, since the defendant has the authority over approval of reclamation implementation plan of public waters and it is not necessary to go through a separate consultation procedure with the head of other administrative agency, it cannot be said that there was no error of incomplete consultation procedure under Article 85 (3) of the Harbor Act in the public notice of this case without such procedure.

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles as to whether the consultation procedure under Article 85 (3) of the Harbor Act is complied with.

(2) Whether the pertinent authorization or permission satisfies the substantive requirements

Article 38 of the Public Waters Management Act provides that a reclamation licensee shall establish an implementation plan for reclamation of public waters and obtain approval from the reclamation license agency (Paragraph 1), or apply for approval of an implementation plan for reclamation after obtaining consent on commencement of construction from a person holding a right to reclamation of public waters or establishing a compensation or loss prevention facility (Paragraph 3).

Meanwhile, according to the Harbor Act, when the Minister of Land, Transport and Maritime Affairs implements a harbor project, he/she shall first make a public announcement of the implementation plan of the harbor project (Article 9(6)), and shall make a public announcement of the implementation plan of the harbor project (Article 10). In addition, the public announcement of the implementation plan of the public waters is deemed to have obtained a project approval under the Public Works Act due to the public announcement of the implementation plan of the harbor project (Article 85(1)). In addition, the Harbor Act requires that the Public Works Act shall apply mutatis mutandis to compensation for land, goods, or rights directly expropriated or used due to the implementation of the harbor project (Article 77(3)), while the compensation for losses incurred due to the implementation of other harbor projects shall be governed by the procedures such as consultation and adjudication between the parties pursuant to Articles 82 and 80 of the Harbor Act. In particular, the same applies to the compensation for losses incurred to the licensed fishery, permitted fishery, and reported fishery under the Fisheries Act to the public waters under the Public Waters Management Act (Article 80(6).

The purpose of the Harbor Act, along with various legal provisions on compensation for losses, is to ensure the smooth progress of harbor works by ensuring that the relevant authorization, permission, and project approval are immediately deemed as a "public works" under the Public Works Act due to the nature of the harbor works that are bound to be implemented as a "public works", while ensuring the fair compensation for land owners, fishery right holders, etc. who have no choice but to incur losses regardless of their intent through the progress of harbor works.

The purpose and purpose of the provisions of the Harbor Act, the forms and contents of the Harbor Act and the Public Waters Management Act, as well as ① there is no particular restriction on the subject and purpose of the public waters reclamation project under the Public Waters Management Act. As such, not only public projects by administrative entities but also private interest projects by private economic entities, etc., ② Public Waters Management Act does not provide the legal fiction of the reclamation project itself as “public works” under the Public Works Act, and thus public expropriation is not carried out according to the public waters reclamation project. As such, compensation for losses under the Public Waters Management Act appears to be premised on the maintenance of the right to occupy and use, etc. of the existing public waters. ③ On the other hand, the harbor project under the Harbor Act is implemented only as “public works,” and the relationship of occupancy and use of the existing public waters can no longer be maintained as “public works” under the Harbor Act. ④ The approval of the implementation plan of the public waters is deemed as the first public waters implementation announcement of the implementation plan under the Harbor Act, which is the first stage of the implementation of the harbor project.

According to the reasoning of the judgment of the court below and the first instance court cited by the court below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the lack of the requirements under the provision does not affect the validity of the public notice of this case on the premise that Article 38 (3) of the Public Waters Management Act does not apply to

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence, incomplete deliberation, and misapprehension of legal principles as to substantive requirements of approval for reclamation

C. Regarding the occupancy and use permit of public waters

(1) Whether consultation with the head of the relevant administrative agency should be followed

According to the provisions of Article 8 (1) of the Public Waters Management Act, a person who intends to construct, rebuild, extend, alter, or remove a wharf, breakwater, bridge, floodgate, building, or other artificial structure on public waters ( subparagraph 1) and dredge or excavate the bottom of public waters ( subparagraph 3) shall obtain permission to occupy and use public waters from the management agency of public waters, but the same shall not apply where a person who has obtained a reclamation license pursuant to Article 28 intends to occupy and use the relevant public waters within the scope of the purpose of obtaining the reclamation license.

In addition, according to Article 28(1) of the Public Waters Management Act, a person who intends to reclaim public waters shall obtain a license to reclaim public waters by specifying the purpose of reclamation as prescribed by Presidential Decree. According to delegation, Article 34(2) [Attachment 2] of the Enforcement Decree of the Public Waters Management and Reclamation Act provides that “1. Land for port facilities: Land for port facilities: Land for port facilities is to be created and used for installing port facilities under Article 2 subparag. 5 of the Harbor Act” as one of the purpose of reclamation stated in the application for reclamation

On the other hand, Article 3(3) [Attachment 3] delegates the authority on the management of public waters such as the permission to occupy and use public waters among the authority of the Do Governor under the Public Waters Management Act to the head of the administrative city.

According to the judgment of the court below and the judgment of the court of first instance cited by the court below, the purpose of the instant harbor project is to construct an acquisition base necessary for the supply of LNG in Jeju-si Port in the Jeju-si. The detailed contents of the instant harbor project are to install port facilities, such as breakwater and bank protection facilities, install sites for the installation of the relevant harbor facilities through reclamation of public waters, and dredge the bottom of public waters corresponding to a port route and a stuff.

In light of the above relevant laws and regulations, so long as the effect of the reclamation license of public waters is deemed to be effective pursuant to the public notice of this case as seen in the above A, it is unnecessary to obtain a separate permit to occupy and use public waters pursuant to the proviso to Article 8(1) of the Public Waters Management Act with respect to the construction of this case which belongs to the scope of the creation of port facility site which is the purpose of reclamation. As such, consultation procedures with Jeju market

However, the lower court determined that a separate consultation procedure is not necessary on the premise that the authority to permit occupancy and use of public waters is not delegated to the Jeju Mayor and is still in need of the Do Governor. Such determination by the lower court was partially inappropriate for its reasons, but it is justifiable to have rejected the Plaintiffs’ assertion by deeming that the instant notice was lawful without undergoing a separate consultation procedure on occupancy and use permission of public waters. In so doing, it did not err by misapprehending the rules of evidence, failing to exhaust all necessary deliberations, or by misapprehending the legal principles on whether to comply with the procedures for consultation

(2) Whether the pertinent authorization or permission satisfies the substantive requirements

As seen above, insofar as the effect of the reclamation license of public waters is deemed to be effective pursuant to the public notice of this case, the construction of this case belonging to the scope of the construction site for harbor facilities which is the purpose of reclamation does not require a separate permit to occupy and use public waters pursuant to the proviso to Article 8(1) of the Public Waters Management Act. Thus, it is unnecessary to examine whether the construction satisfies

The judgment of the court below to the same purport is just, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles as to the substantive requirements for the occupancy and use permission of public waters

2. As to the defect caused by the retroactive entry in the construction period and clerical error in the notice of this case and the notice of the implementation plan for harbor works on January 9, 2013 (hereinafter “the second notice”)

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below, comprehensively based on the adopted evidence, found that the defendant had already commenced the harbor works of this case in accordance with the first announcement of the implementation plan for the harbor works of September 28, 201 (hereinafter “the first announcement”), and thereafter, the procedural defect in the first announcement procedure was a problem, continuing the harbor works of this case by undergoing the second announcement procedure, and accordingly, the period of construction period under the second announcement and the second announcement was entered on March 5, 2012, which was earlier than the date of the second announcement and the second announcement. Meanwhile, the court below determined to the purport that the second announcement and the second announcement were not affected by the second announcement and the second announcement, separate from the above, the second announcement and the second announcement were not affected by the second announcement and the second announcement.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there is no violation of the rules of evidence, omission of judgment, the principle of advance compensation under the Public Works Act, or the principles

3. Conclusion

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 Kim So-young (Presiding Justice)