2016Y 5025 Incheon Songdo 10 Tools Reclamation Sub-sections

Revocation of Designation

The head of Nam-gu Incheon Metropolitan City

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellee] Defendant 1 and 3 others (Law Firm Song-chul, Attorneys Song Jong-chul, Park Jong-tae, Park Jong-tae, Park Jong-tae, Park Jin, Park Jin

Minister of Public Administration

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo Young-young, Justice Kim Min-young, Counsel for the defendant-appellant

1. The head of Yeonsu-gu Incheon Metropolitan City;

2. The Yeonsu-gu Incheon Metropolitan City.

Defendant Intervenor’s Intervenor Law Firm LLC (LLC)

Attorney Go-won, Kim Jin, Kim Jin-young, Kim Jin-kin, Lee In-kin

October 15, 2020

December 24, 2020

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the Plaintiff, including the part resulting from the participation.

The Defendant’s decision on December 30, 2015 as determined by the Yeonsu-gu Incheon Metropolitan City Ordinance on the part inside the ship connecting each point in the attached Form 1 through 13, and 1 of the 1-1-stage container terminal section of Incheon New Port, the reclamation of which was completed in the area subject to reclamation of 10 Section of Incheon B, which was conducted on December 30, 2015, is revoked.

1. The background and summary of the decision of this case

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings as a whole in Gap evidence 1, 2, and Eul evidence 2-1 and 2.

A. From 1996 to 2020, the Incheon Metropolitan City Yeonsu-gu Incheon Metropolitan City (hereinafter referred to as the “Seoul Metropolitan City Yeonsu-gu”) is under the jurisdiction of Yeonsu-gu, Incheon Metropolitan City (hereinafter referred to as the “Seoul Metropolitan City”) in which part of the 1 to 8 sections, 9 sections, and 9 sections are projects created by reclaiming public waters 53.40km2 from the Yeonsu-gu, Incheon Metropolitan City.

B. On March 20, 2015, the chief of the Incheon regional maritime affairs and fisheries office requested the Defendant (the Minister of the Interior before modification: the Minister of the Interior) to determine the local government to which reclaimed land belongs pursuant to Article 4(4) of the Local Autonomy Act with respect to the section of the Incheon New Port Rest, the reclamation of which has been completed, among the ten sections of the Incheon Bridge, on May 14, 2015.

C. On December 21, 2015, the Central Dispute Mediation Committee for Local Governments (hereinafter referred to as the “Committee”) under the jurisdiction of the Defendant to which the local government belongs, as determined by Yeonsu-gu Incheon Metropolitan City, to which the portion of the Incheon New Port I-1 container terminal and the area of the sea rest area for the Incheon New Port (hereinafter referred to as “the total area of the above sections”) the reclamation of which was completed among the 10 sections of the Incheon Songdo District, was decided by taking account of the following circumstances.

① Since the Incheon Songdo District is designated as a free economic zone and is organically linked and developed, when determining a local government to which the reclaimed land belongs, the entire development plan for the Songdo International City shall be taken into account. Since the Yeonsu-gu Incheon Metropolitan City already has jurisdiction over 1-8 sections and 9 sections, it is desirable to designate the 10 section new port as the jurisdiction of Yeonsu-gu Incheon Metropolitan City in terms of the efficiency of the utilization of national land.

② The residents of the Incheon Songdo District are expected to be managed in an integrated manner, and if the local government having jurisdiction over the Songdo District is different, not only residents but also domestic and foreign investors are likely to be disadvantaged.

(3) The Nam-gu Incheon Metropolitan City asserts that there exists an administrative practice under the jurisdiction of Nam-gu Incheon Metropolitan City, Nam-gu, Incheon Metropolitan City, on the ground that 10 construction districts and 10 construction districts buried the sea in front of the Southern-dong-gu, and that there was six lots of land, such as Songdo-gu 7 and 111 construction sections prior to the execution of reclamation works. However, it is difficult to deem that such administrative practice existed.

④ The development plan is being formulated and implemented in consideration of the provision of integrated administrative services.

D. On December 30, 2015, the Defendant decided to determine the local government to which the instant reclaimed land belongs as the Yeonsu-gu Incheon Metropolitan City (hereinafter “instant decision”) and notified the Plaintiff, the Intervenor, and the head of Yeonsu-gu Incheon Metropolitan City, Yeonsu-gu, Incheon Metropolitan City.

E. On January 13, 2016, the Plaintiff filed the instant lawsuit seeking revocation of the instant decision with the Supreme Court.

2. The assertion and judgment

A. As to the assertion of unconstitutionality under Article 4 of the Local Autonomy Act

1) The plaintiff's assertion

If Article 4(3) through (7) of the Local Autonomy Act purports to exclude the criteria of the previous maritime boundaries, this is an unconstitutional law that infringes on the essence of the local autonomy system guaranteed by the Constitution and goes against the principle of prohibition of comprehensive delegation. The decision in this case is unconstitutional based on an unconstitutional law.

2) Determination

A) Article 117(1) of the Constitution of the Republic of Korea provides that local governments shall handle affairs concerning the welfare of residents, manage property, and enact regulations concerning autonomy within the scope of statutes (Article 117(1)). While the types of local governments generally guarantee autonomous administration by local governments, the types of local governments shall be prescribed by Acts (Article 117(2)), and the matters concerning the organization and operation of local governments shall be prescribed by Acts (Article 118(2)). (See Constitutional Court Order 2015Hun-Ma3, Jul. 16, 2020).

B) Article 4(1) of the Local Autonomy Act provides that "the name and jurisdiction of a local government shall be the same as that of the previous local government, the alteration of the name and jurisdiction, or the abolition, establishment, division or consolidation of a local government shall be prescribed by the Presidential Decree: Provided, That the alteration of the boundary and jurisdiction of a local government shall be determined by the Presidential Decree." Article 4(3)1 of the Public Waters Management and Reclamation Act provides that "the local government to which a reclaimed land (hereinafter referred to as " reclaimed land") under the Public Waters Management and Reclamation Act (hereinafter referred to as "Public Waters Act") belongs shall be determined by the Minister of the Interior and Safety pursuant to the provisions of paragraphs 4 through 7, and Article 4(4) through (7) provides that the Minister of the Interior and Safety and its affiliated committees shall observe the procedures to be followed when making a decision and decision on the reversion of the jurisdiction of a reclaimed land, but the substantive standards or factors of the

C) According to Article 67 of the Act on the Establishment, Management, etc. of Spatial Data and Article 58 subparag. 17, 18, and 19 of the Enforcement Decree of the same Act, the public waters on land are determined by the competent local government’s organization on the basis of the land as the surface area or water current on the “land” which is the object of a real right. However, since the bottom floor of the public waters on the sea is not deemed the land which is the object of a real right, it falls under a case where a reclaimed land is newly created upon the execution of a reclamation work. Since a new reclaimed land does not belong to any local government, the State shall determine the competent local government in the form of a decision made by the Minister of Public Administration and Security in accordance with the main sentence of Article 4(1) of the Local Autonomy Act or Article 4(3) of the Local Autonomy Act, and it does not belong to any local government until that time (see Constitutional Court Order 2015Hun-Ga3, Jul. 16, 2020).

D) In full view of the fact that the local government’s jurisdiction does not fall under the core area of the local autonomy system’s guarantee, but falls under the scope of the legislative formation authority; that is, the local government is determined only by the decision of the State in the case of the maritime public waters reclaimed land; that, in determining the local government having jurisdiction over the maritime public waters reclaimed land, the State should make a comparison and balancing by taking into account the efficient and balanced utilization, development, and preservation of the land (Articles 120(2) and 122 of the Constitution), balanced development between regions (Article 123(2) of the Constitution), and balanced development between regions (Article 123(2) of the Constitution) and the fact that it is technically difficult to provide more specific criteria for determination in the law, it cannot be deemed that Article 4(3) through (7) of the Local Autonomy Act infringes on the essence of the local autonomy system or violates the principle of prohibition of comprehensive delegation, even if it did not specifically stipulate the substantive criteria for determination or consideration of the decision on the jurisdiction of the Ministry of Public Administration

B. As to the assertion on the application of the principle of long-distance median line

1) The plaintiff's assertion

According to the Constitutional Court Order 2010HunRa2 decided July 30, 2015, the principle of “the long-distance median line” is the most basic factor that should be considered when defining the maritime boundary of public waters. Accordingly, the reclaimed land of this case should be reverted to the jurisdiction of Nam-gu Incheon Metropolitan City if the boundary line between Yeonsu-gu and Nam-dong is based on the line extended to the maritime straight line.

2) Determination

“The principle of “the long distance median line” means that the connection line between the points located the same distance from the nearest point of the coastline of each local government is to be considered when defining the maritime boundary of public waters (see Constitutional Court Order 2010HunRa2, Jul. 30, 2015). However, as seen earlier, the “marine public waters” and its “reclaimed land” completely differ from the legal nature, and as such, the use of public waters and the use of reclaimed land differ from the method and content thereof, so it cannot be applied to the determination on the jurisdiction of reclaimed land (see Constitutional Court Order 2015HunRa3, Jul. 16, 2020). Therefore, the Plaintiff’s assertion is without merit.

C. As to the assertion of deviation and abuse of discretionary power

1) The plaintiff's assertion

When the Defendant exercises the discretionary power to decide on the jurisdiction of reclaimed land, it should appropriately balance the interests of the relevant local governments and their residents. However, in the following respect, the decision of this case is erroneous in the misapprehension of discretionary power due to the lack or omission of the consideration of important factors, or the lack of legitimacy and objectivity in the balancing of interests of the factors to be considered.

(1) The reclaimed land of this case which is geographically adjacent to the sea in front of the south East-gu Incheon Metropolitan City shall be under the jurisdiction of the Nam-gu Incheon Metropolitan City.

(2) Section 9 of the Songdo District managed by Yeonsu-gu Incheon Metropolitan City is different from ten sections from those that will function as the hinterland logistics complex of the Incheon New Airport due to the hinterland of an international passenger terminal. The straightdo International City is also different from the ten sections. The straight line distance is at least 4 km. Since its function is differentiated for each construction section, it is not necessary to match its jurisdiction with other construction sections. The Southern-do Incheon Metropolitan City shall have jurisdiction over the reclaimed land of this case, so it is possible to efficiently connect the facilities located on the land area of the Southern-do Incheon Metropolitan City with those located on the land area

③ According to the instant decision, the entry route from the residents of the Nam-gu Incheon Metropolitan City to the sea is obstructed.

(4) The inefficiency of administration shall be increased as the area and population of Yeonsu-gu Incheon Metropolitan City increases substantially compared to that of the previous districts due to the incorporation of the Songdo District.

⑤ There is no data to verify the intention of residents of the Songdo District, and the damage caused by the loss of public waters previously under the jurisdiction of the Seodong-gu Incheon Metropolitan City as the reclaimed land of this case was not considered properly.

2) Relevant legal principles

In light of the legislative intent of amending Article 4 of the Local Autonomy Act by Act No. 9577 of Apr. 1, 2009, and establishing a new system for the determination of a local government to which reclaimed land belongs by the Minister of the Interior and Safety, the customary law effect of "marine boundary standard on the jurisdiction of reclaimed land" has been limited to the amendment of the above Local Autonomy Act, and the Minister of the Interior and Safety and its affiliated committees have a wide range of discretion when determining a local government to which reclaimed land belongs. However, the discretion of formation is not unlimited, but limited to the comparison and balancing of relevant interests by comprehensively taking into account all relevant interests. Where the Minister of the Interior and Safety and its affiliated committees did not withhold such interests, or where there was a lack of legitimacy and objectivity, even though the interests are to be included in the subject of consideration of the profit balancing, the competent decision should be deemed unlawful. Considering the purport of the amendment of the Local Autonomy Act as above, the Minister of the Interior and Safety and its affiliated committees should generally consider the following matters (see, e.g., Supreme Court Decision 2131014).

(1) The competent authority shall determine the relevant area and make efficient use of new land available in consideration of the detailed land use plan of each area within reclaimed land and organic use relationship with neighboring areas, etc.

(2) A reasonable boundary shall be established based on the situation in which reclaimed land is used, in consideration of the shape of connection between reclaimed land and another local government's jurisdiction, connection and distance between reclaimed land and another local government's jurisdiction, and the location of natural features, such as roads, rivers, canals, etc., which can be easily recognized as boundary within the jurisdiction of reclaimed land.

(3) The efficiency of administration shall not be significantly impaired considering various factors, such as the connection and distance between reclaimed land and a neighboring local government, the installation and management of infrastructure, such as roads, ports, electricity, waterworks, and telecommunications, the prompt provision of administrative services, and the ability to cope with emergencies.

(4) In consideration of the transportation relationship between reclaimed land and neighboring local governments, accessibility from outside, etc., a local government’s inclusion in the jurisdiction of the residents of reclaimed land in the residential and living convenience shall be considered.

(5) Since a neighboring local government and residents lose adjacent public waters due to the execution of reclamation works, the historical and practical benefits of local governments that lose such public waters, and the basis of living and economic benefits of their residents, shall be taken into account.

(6) In cases of a reclamation project, the whole reclamation project plan of which has been formulated and implemented in a phased and successive manner by project details or district, such as administrative support for the part of which reclamation has been completed, even if it is inevitable to first determine the attribution of the jurisdiction over a part of the area where reclamation has been completed, the determination on attribution of such part of the jurisdiction may also have considerable impact on the determination on the determination on jurisdiction over the remaining areas to be reclaimed. Therefore, even in cases where a determination on attribution is made only for a certain area, the determination on attribution of jurisdiction shall be made by taking into account the framework of the overall area of the area where reclamation is planned, comprehensively taking into account the overall implementation plan of the relevant reclamation project, the land use plan and usage plan of the area where reclamation has been planned, the overall implementation plan of the relevant reclamation project and the detailed land use plan of the area where reclamation has been completed. If a determination on attribution of jurisdiction is partially made in light of the overall implementation plan of the relevant reclamation project, there is a risk that disputes between local governments may arise between the State and the local community, and it is not desirable for social integration.

3) Determination

Examining the following circumstances in light of the legal principles as seen earlier: (a) evidence Nos. 1 and 2; (b) evidence Nos. 4-3 and 4-2-2; (c) evidence Nos. 1, 3, and 5; and (d) evidence Nos. 1, 3, and 5; (b) evidence Nos. 6-1, 2, 8, and 9-1, and 9-2; and (c) evidence Nos. 1 and 9-2; (b) the Defendant did not compare and balance all relevant benefits while making the instant decision; or omitted matters that should be included in consideration of the object of balancing; or (c) it is difficult to view that the instant decision constitutes an unlawful disposition that deviates from and abused discretionary power, even if it imposed a balance of interests, it cannot be deemed that the instant disposition is an unlawful disposition that deviates from

(1) According to the Incheon Free Economic Zone International City Development Plan, Songdo International City was developed in order to create a special zone where technology, human resources, enterprises, finance, logistics, etc. can be integrated by introducing the strategic cluster concept with 7 days in Songdo-dong, Yeonsu-gu, Incheon Metropolitan City (5, 7, 11 construction sections), Songdo-si, Incheon Metropolitan City (6, 8 sections), and logistics complexes (9, 10 sections). From the beginning, the development was conducted in order according to the land use plan for creating a special economic zone which is integrated by creating the whole Songdo-do international city into one district. The 9 sections function as a harbor hinterland complex and the 10 sections including the reclaimed land in this case need to be integrated management and regulation to provide convenience in investment and business activities of foreign investment enterprises.

② Since the Yeonsu-gu Incheon Metropolitan City directly manages domestic wastes, sewerage, parks, green areas, outdoor advertisements, roads, etc. closely related to the livelihood of residents among urban infrastructure in the Songdo International City from December 31, 2015, the relevant reclaimed land in this case can be managed by the Yeonsu-gu Incheon Metropolitan City.

③ Although the reclaimed land of this case appears to be close to the Southern-gu Incheon Metropolitan City in a straight line, considering the relationship between the LNG receipt base and its access road (on the port air route), as well as the surrounding structures and infrastructure, such as where the Yeonsu-gu Incheon Metropolitan City manages all access roads to the Incheon Metropolitan City, the reclaimed land of this case is also effective under the jurisdiction of the Yeonsu-gu Incheon Metropolitan City.

④ The Yeonsu-gu Incheon Metropolitan City already has jurisdiction over the 1-8 sections and 9 sections of the Songdo International City, but there is no obvious material to deem that the Incheon Metropolitan City Yeonsu-gu's administrative capacity is insufficient in an administrative aspect. Rather, if the Yeonsu-do International City is divided into Yeonsu-gu and Namdong-gu and falls under the jurisdiction, the main agent in charge of administrative affairs in the district is required to be changed to increase in in in efficiency.

⑤ According to the newspaper article (No. 3), it can be seen that the residents of Songdo International City integrated and managed the Songdo International City, including the reclaimed land in this case, to be managed by the residents of Songdo International City.

(6) There is no obvious data to deem that residents of Nam-gu Incheon Metropolitan City have conducted fishery activities, etc. in the area where the reclaimed land, etc. of this case is located or used as a marine entry into and exit from the area.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing party, including the part arising from participation in the assistance. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Kim Jong-hwan

A person shall be appointed.

A person shall be appointed.