(영문) 창원지방법원 2015.10.13.선고 2015구합20983 판결

A. The Plaintiff was a company designated as the executor of the development project B (one construction section, hereinafter “instant project”) pursuant to the Industrial Sites and Development Act (hereinafter “Industrial Sites Act”). On January 25, 2013, the Plaintiff completed the instant project’s implementation on the scale of 958,934.8 square meters in Tong Young-si, Si.

B. On February 4, 2013, the Plaintiff filed an application for authorization of completion of the instant project with the head of the Busan Regional Construction and Management Administration for the authorization of completion on August 20, 2013 (hereinafter “instant authorization of completion”). Of the conditions attached to the instant authorization of completion, the contents related to the instant case are as follows (hereinafter “instant authorization of completion”).

[1] Pursuant to Article 46 of the Public Waters Management and Reclamation Act (hereinafter referred to as the "Public Waters Act"), reclaimed land 15,885.6 square meters (seashore 69.8 + remaining reclaimed land 15,815.8 square meters; hereinafter referred to as the "land in this case") belonging to the State (Ministry of Oceans and Fisheries) shall be divided into aggregate lots at a location designated by Msan Regional Maritime and Fisheries Office. 2. The total area of reclaimed land 16,810 square meters used for public facilities (road and river) within 60 days from the date of authorization of completion pursuant to Article 46 of the Public Waters Act among the total area of reclaimed land 286,67.7 square meters of reclaimed land shall be 16,810 square meters of reclaimed land used for public facilities (road and river) within 60 days from the date of authorization of completion pursuant to Article 46 of the Public Waters Act; the rest land in this case shall revert to the State (Ministry of Oceans and Fisheries); the land cadastre and certified copies thereof shall be submitted to the project implementer's.

C. On June 30, 2014, the registration of ownership preservation in the name of the Republic of Korea (the Ministry of Oceans and Fisheries) was completed on the instant land. On July 7, 2014, the Plaintiff claimed the purchase of the instant land pursuant to Article 47 of the Public Waters Act, and acquired it on September 25, 2014.

D. After that, around February 2015, the Defendant received a disposition from the Board of Audit and Inspection to the effect that “the Plaintiff has used the instant land, which is State property, without obtaining permission for use of state property from August 20, 2013, which was the date of the authorization of completion of the instant land, to July 6, 2014, which was the day before the date of filing the claim for purchase of the instant land, the Defendant was subject to a disposition of the audit result stating that “The Plaintiff is subject to the imposition of indemnity.”

E. Accordingly, on March 24, 2015, the Defendant rendered the instant disposition imposing indemnity of KRW 117,387,710 to the Plaintiff as follows.

1. Location: D2. Users: Do2. Use area: 15,885.6 square meters (factory site): 15,885.6 square meters: From October 19, 2013 to July 6, 2014 (261/365 days): From August 20, 2013 to July 6, 2014: From August 20, 2013 to July 6, 2014 - 60* 261* - 261 days* 260* 50 days from the date of completion of the instant condition 2. 5 square meters; 60 days from the date of completion of the indemnity - 60 days from the date of completion of the indemnity - 17,387, 710-10-15, 85 square meters x 208/160/6000, 205/6205/610/6205/6) of indemnity 200

F. Meanwhile, on November 23, 2012, the head of the Busan Regional Construction and Management Office approved and publicly notified the implementation plan from October 2007 to December 31, 2013 (the notice G of the Busan Regional Construction and Management Office; hereinafter referred to as the “instant notice”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, Eul evidence Nos. 1 through 4, 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The Plaintiff did not possess or use the instant land from the date of the authorization of completion to the date of acquisition of the instant land. Thus, there is no legitimate ground for disposition.

2) Even if the Plaintiff occupied and used the instant land without permission, ① the Defendant should calculate indemnity based on the “land for factory,” not on the basis of the Plaintiff’s implementation of the instant project, but on the basis of the “public waters, at the time the Plaintiff started possession.” ② According to Article 21(1) of the Industrial Sites Act, the permission to use State property on the instant land is deemed to have been granted until December 31, 2013, which is the implementation period of the instant project publicly announced in the instant public notice, and thus, the Plaintiff’s possession for the period from October 19, 2013 to December 31, 2013 cannot be deemed to have been occupied without permission.

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

1) Whether the Plaintiff occupied the land of this case

In order to be de facto controlled by social norms, possession refers to an objective relationship that shows that an article belongs to a person's factual control. To be de facto controlled, it is not necessarily necessary to refer to physical and practical control, but should be judged in conformity with social norms in consideration of the time, space and principal relation with the article and the possibility of exclusion from others' control, etc. (see, e.g., Supreme Court Decision 95Da8713, Aug. 23, 1996), and Eul's statement or image with the evidence Nos. 11, 14, 18, 19, 19, 23, 25 (including a serial number), and the whole purport of the pleading is to be taken into account. The plaintiff obtained the "approval from the head of the Regional Construction and Management Administration of Busan, on February 23, 2010, the official approval from the head of the Regional Construction and Management Administration for the purchase of the land of this case from around that time to July 7, 2014.

2) Whether the criteria for calculating indemnity are unlawful

A) The Supreme Court Decisions 94Nu2510 Decided September 9, 1994; 200Nu4098 Decided September 9, 200; 207Nu4098 Decided September 28, 200, which held to the effect that an occupant of state property should be at the time of commencement of occupancy, barring any special circumstances, for the assessment of the amount of compensation imposed on the illegal occupancy of state property and the usage fees, which serves as the basis for the assessment of the amount of compensation imposed on the illegal occupancy of state property. The purport of the Supreme Court Decision is to consider that it is unreasonable that an illegal occupant would incur damages on his own improvement, and that an administration of state property such as the State will gain profits from the development of state property at the expense of an occupant of state property without permission, in cases where an existing occupant continues to occupy and use the land after the State newly acquired the ownership, and it is reasonable that the occupant was at the time of commencement of occupancy, not at the time of commencement of occupancy at the time of commencement of occupancy.

B) In light of the above legal principles, the subject of the compensation imposed by the Defendant on the instant case on the ground of the Plaintiff’s unauthorized occupation is the reclaimed land, that is, the land of this case, which is not the public waters at the time when the Plaintiff started possession, and the State acquired the ownership of the instant land only at the time of the completion of the instant construction pursuant to Article 46(1) of the Public Waters Act. Thus, the instant disposition that calculated the indemnity based on the current status at the time when the State acquired the ownership of the instant land is the lawful disposition in accordance with the relevant Acts and subordinate statutes, such

3) Whether permission for use is deemed granted under the Industrial Sites Act

Article 21 (1) of the Industrial Sites Act provides that "where an authority designating industrial complexes or the Minister of Oceans and Fisheries approves an implementation plan or any modification thereto pursuant to Articles 17, 17-2, 18, 18-2, and 19, any of the following permission, decision, authorization, license, consultation, consent, approval, cancellation, or disposition (hereinafter referred to as "authorization, permission, etc.") is subject to prior consultation with or approval from the head of the relevant administrative agency pursuant to paragraph (2), the relevant authorization, permission, etc. shall be deemed to have been granted, and when the approval of the implementation plan is publicly notified pursuant to Article 19-2, the authorization, permission, etc. shall be deemed to have been publicly notified or announced pursuant to the following relevant Acts," and Article 21 (1) 17 of the same Act provides that "permission to use State property pursuant to Article 30 of the State Property Act and disuse of administrative property pursuant to Article 40 of the same Act shall be deemed to have been granted from October 207 to December 12, 20131:

However, the purport of the Industrial Sites Act’s legal fictions as above is to enable a project implementer to smoothly implement an industrial complex development project by integrating the counter and simplificationing expenses and hours with the competent administrative agency in charge of approval of an implementation plan for an industrial complex in relation to the legal fictions of authorization and permission. It does not intend to legal fictions of authorization and permission for a project implementer even after the completion of the implementation of an industrial complex development project. Acts and subordinate statutes related to legal fictions of authorization and permission are unique purposes (the Industrial Sites Act aims to develop the national economy through balanced national land development and continuous industrial development promotion. The purpose of this case is to provide for basic matters concerning state property for the purpose of protecting and efficiently managing the national economy by prescribing the basic matters concerning state property, and also to ensure the separate purpose of the approval system for an implementation plan for an industrial complex and the legal fictions of authorization and permission, as well as the institutional requirements are different. Thus, if the project is completed by the Plaintiff’s prior to the completion of the project, it can no longer be seen that it is reasonable.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.