(영문) 부산고등법원 2015.7.22.선고 2013누2044 판결

2. The costs of appeal are borne by the Defendant, and the costs of appeal arising from the intervention are borne by the Intervenor joining the Defendant.

Purport of claim and appeal

1. Purport of claim

On August 13, 2012, the Defendant’s revocation of a provisional disposition of denying the occupancy and use of public waters against the Plaintiff.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the disposition;

The court's explanation on this part is consistent with the corresponding part of the judgment of the court of first instance, except that the "Committee on Countermeasures against Fishery Damage Caused by Captain" (hereinafter referred to as the "Assistant Captain") No. 10 of the judgment of the court of first instance is dismissed as the "Supplementary Intervenor" (hereinafter referred to as the "Supplementary Intervenor"), and all of the "record Captain" mentioned in the part above as the "Supplementary Intervenor" are the same as the corresponding part of the judgment of the court of first instance, so it is cited in accordance with Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. The plaintiff's assertion

1) Although the former Public Waters Management and Reclamation Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Public Waters Management Act”) and its Enforcement Decree do not stipulate “non-performance of compensation or civil petition filing against fishery right holders or non-performance of compensation for the occupation and use of public waters” on the grounds of non-permission for occupation and use of public waters, the Defendant issued the instant non-permission disposition on the grounds of non-submission of detailed agreements by fishery right holders and filing a civil petition. The Defendant’s non-permission disposition in the instant case is unlawful without any legal basis.

2) The Plaintiff’s instant application aims at “the number of sea water to be used for the cooling water of the 1 and 2 period prior to the date of the report,” and the acceptance of sea water alone cannot be deemed as causing any damage to the subsidized fishermen belonging to the Intervenor (hereinafter “the instant fishermen”). As such, this does not constitute the right holder, i.e., the right holder related to the occupation and use of public waters under Article 12 of the former Public Waters Management Act. Even if the instant fishermen are the right holder to consent to the instant application, according to the agreement concluded between the Plaintiff and the Intervenor and the Intervenor, the said fishermen comprehensively consented to the instant application.

Therefore, it is unlawful that the Defendant refused to grant permission on the ground that the Plaintiff did not consent to the fishermen of the instant case.

3) The instant non-permission disposition is unlawful as a disposition that the Defendant deviatess from or abused its discretion, or goes against the principle of equity.

B. The defendant and the supplementary intervenor's assertion

The instant fishermen under the former Public Waters Management Act are the persons entitled to consent to the instant application, and they did not consent to the instant application. Even if they agreed, such consent was a temporary consent that was made on the condition of the Plaintiff’s payment of compensation. The validity of the consent was extinguished, or the Plaintiff revoked or revoked the Plaintiff’s consent. In addition, the agreement in each of the instant agreements was made by deceiving the Intervenor even though the Plaintiff did not have any intent to compensate for the instant fishermen, and thus, the content of each of the instant agreements is null and void.

Even if the consent of the fishermen of this case is valid, the denial to permit the application of this case is a discretionary act, and the defendant's non-permission of this case is a legitimate act that does not deviate from or abuse of discretion.

Therefore, the instant disposition is lawful.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Determination

A. As to the ground for non-permission of this case

As a premise for examining whether the non-permission disposition of this case is legitimate, the grounds for the non-permission of this case are first examined.

As seen below, in order to obtain permission to occupy and use public waters, the consent of the fishery right holder, etc. should be required. As seen above, each agreement between the plaintiff and the intervenor representing the fishery business operator of this case (hereinafter "each agreement of this case") dated December 28, 2005 and December 22, 2008 (hereinafter "each agreement of this case") state that "the supplementary intervenor consents to the permission to occupy and use public waters with respect to the construction and operation of the plaintiff's 1 and 2, and the plaintiff filed the application of this case on the basis of the above agreement. The agreement of this case also stated that the plaintiff would compensate the fishery damage suffered by the fishery business operator of this case, but the defendant failed to pay compensation pursuant to the above agreement of this case, and the defendant did not return the plaintiff's request for non-permission to the plaintiff for non-permission of fishery business due to the non-permission of the agreement of this case (see the plaintiff's request for non-permission of the agreement of this case)" and the defendant did not return the plaintiff's request for non-permission of the agreement of this case.

Comprehensively taking account of the above circumstances, the substance of the above non-permission ground cited by the defendant can be seen as the absence of consent from the fishermen of this case, i.e., the failure to perform the agreed matters concerning the plaintiff's compensation, and the withdrawal of consent or the absence of consent from the business operators due to the plaintiff's failure to perform the matters concerning the plaintiff's compensation. In addition, the defendant may add or change other reasons to the extent that it is recognized to be identical in relation to the grounds for the original disposition and basic factual relations (in the case of a complaint suit, the disposition agency may add or change other reasons to the extent that it is recognized to be identical in relation to the grounds for the original disposition and basic factual relations). The grounds for the defendant's non-permission disposition of this case shall be deemed to be the "defect of the fishermen of this case who can be deemed to be the person entitled to consent" in the application of this case, and the judgment shall be made as to the legitimacy of the disposition.

B. Whether the instant fishermen are the right holder with respect to the occupancy and use of public waters on the instant application

Pursuant to Article 8 (1) of the former Public Waters Management Act, a person who intends to draw water from or discharge water from public waters shall obtain permission to occupy and use public waters from the management agency of public waters. According to Article 12 (1) of the same Act, the management agency of public waters may grant permission only where a person who has a right likely to be damaged due to occupancy and use permission of public waters (hereinafter referred to as "rigr who has a right to occupancy and use public waters") gives consent to occupancy and use of public waters. Article 12 (1) of the former Enforcement Decree of the Public Waters Management Act (hereinafter referred to as the "Enforcement Decree of the Public Waters Management Act") provides that a person who has such right obtains permission to use and use public waters under Article 8 of the former Public Waters Management Act, a person who has obtained a reclamation license under Article 28 of the same Act, a fishery holder under Article 8 of the Fisheries Act, a person who has obtained a fishery license under Article 41 (3) of the same Act, a person who has obtained permission to occupy and use public waters or a right to use land is not subject to use such public waters.

The following circumstances, which can be seen by comprehensively taking into account the facts and the purport of the entire arguments, such as ① the operation of a nuclear power plant, a considerable amount of sea water as a cooling water, and it cannot be readily determined that such sea water has no impact on the marine ecosystem; ② the sea water taken over and used (hereinafter referred to as “the sea water”) cannot be once again discharged into the sea, so it cannot be determined separately from the water. ③ Even though the sea water taken over at the 1 and 2 period prior to the date of the report, is divided into the water taken over and the water taken out from the Ulsan-gun, the neighboring area, and the administrative district was divided into the water taken over and the water taken out, but the fishery of this case also falls under the scope of fishery personnel’s right to use, and the Intervenor’s right to use the water of this case is also deemed to fall under the scope of the permission of use of the Plaintiff and the Intervenor’s right to use and the Intervenor’s right to use the water of this case (in relation to the compensation for damages under each agreement between the Plaintiff and Intervenor).

C. Whether the instant fishermen consented to the instant application

1) First, we examine the interpretation of the part concerning the consent of the right holder of each of the instant agreements.

As seen earlier, the Intervenor was an organization composed of the captain-Gun fishermen (the fishermen of this case) to demand compensation for damages caused by the construction and operation of the Plaintiff and prepared each of the agreements of this case between the Plaintiff and the Plaintiff on December 28, 2005, the Intervenor entered into this agreement as of December 7, 2005, with the agreement on the occupancy and use of public waters in relation to the operation of the 1 to 4th, the 1 to 4th, and the construction and operation of the 1 to 4th, the 1st, and the 4th, the 2008 agreement on December 22, 2008, stating that the Intervenor agreed to all the authorization and permission necessary for the occupation and use of public waters, and actively cooperate with the owner of the right to the 4th, the 3th, the 3th, and the construction and operation of the 1 to 4th, the 3th of the 3th of the 3th of the 2008 agreement.

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent as stated in the relevant disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. In the event there is a conflict of opinion regarding the interpretation of a contract between the parties and the interpretation of the intent of the parties expressed in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decision 2008Da47367, Aug. 25, 2011). Meanwhile, in a juristic act, the condition is an incidental official of the legal act that leads to the occurrence or extinction of the legal act, and thus, constitutes an expression of intent that is identical to the effect of the legal act, in order to take effect as a condition of a juristic act, such an intent must be included in the external content of the act (see, etc.

In light of the following circumstances, the aforementioned facts and the purport of the entire arguments, which can be comprehensively determined as a whole: ① each of the above agreements clearly state that “the consent of the right holder is required to enter into this agreement, and ........... no other conditions are added to the agreement; ② the occupancy and use of public waters is an essential element in the operation of nuclear power plants; ② the construction and operation of nuclear power plants requires large number of human, material, and time investments and the stable use of public waters is necessary in light of the importance of the power generation in the Republic of Korea’s power generation. Accordingly, if an agreement related to the investigation into injury and compensation law is reached, it appears that the plaintiff comprehensively stated the above terms and conditions for the purpose of continuing the construction and operation of nuclear power plants; ③ the above agreement to require the plaintiff to submit the report and investigation methods and compensation methods within 0 days from the date of the conclusion of each of the above agreements, and thus, it appears that each of the above terms and conditions are clearly stated that the plaintiff should be paid compensation methods in accordance with the law and compensation methods for the above construction and operation of nuclear power plant.”

2) Next, we examine whether the fishermen of this case can withdraw or cancel the above right holder’s consent due to the Plaintiff’s failure to perform the Plaintiff’s duty of compensation.

However, as seen above, as long as the plaintiff refused to complete the final investigation of damage to the fishing industry in the area of the captain according to the operation of the Ri and the Ri headquarters related to the investigation of damage to the fishing industry in accordance with the operation before the report was made with the assistant intervenor on December 2, 2008, the plaintiff did not make compensation for damage as stipulated in the above agreement until now. However, as seen above, as long as the contents related to the consent of the right holder of each agreement of this case were interpreted as the conclusive consent of the holder of the fishery industry in this case by the conclusion of the above agreement, the above damage claim as a civil lawsuit can not be withdrawn or cancelled on the ground of the above non-performance of the obligation to compensate for damage unless there is any inherent defect in the conclusion of each agreement of this case. Thus, there is no evidence to acknowledge that there is any inherent defect in the conclusion of each of the above agreement. Thus, the owner of the right to use and use public waters of this case shall continue to exist.

3) Next, we examine whether the new consent of the fishermen of the instant case is necessary in the instant application.

Article 8 (4) of the former Public Waters Management Act provides that "where a person who has obtained permission for occupancy or use intends to change matters prescribed by Presidential Decree, such as the period and purpose of occupancy or use among the permitted matters, he/she shall obtain permission for change from the management agency of public waters." Thus, a person who intends to obtain permission for change shall obtain consent from the holder of the right to occupancy or use of public waters pursuant to Article 1

However, upon examining the circumstances leading up to the Plaintiff’s filing of the instant application, the Plaintiff first applied for permission to occupy and use public waters for three years from April 20, 2009 for the commencement and operation of the construction period of 1, 2,000 Wonwon, after entering into each of the instant agreements, and then obtained the instant first permission. For the operation of the nuclear power plant, the area and purpose of the instant first permission and the public waters to be occupied and used are the same, and the period of the initial permission and the alteration of the period of permission was extended. The right holder related to the occupancy and use of public waters of the instant fishermen upon entering into each of the instant agreements is not required to separately agree to the instant application since it is presumed that the Defendant’s first consent to the occupancy and use of public waters as well as the period of operation for the operation of the nuclear power plant is not necessary.

4) Lastly, we examine whether the consent under each of the instant agreements is null and void.

The evidence presented by the Defendant alone is insufficient to recognize that the Plaintiff, as alleged by the Defendant and the Intervenor, had by deceptioned the fishermen of this case without the intent to compensate for the said losses. Rather, the Defendant did not adopt the final report of the previous South-North Institute on the ground that the said report violated the contract, and it seems that the Defendant still maintained the intent to compensate the fishermen of this case in accordance with each of the instant agreements. Accordingly, each of the instant agreements cannot be deemed null and void.

5) Therefore, the consent of the instant fishermen necessary for the permission of the instant application was obtained, and such consent is valid until now.

D. Whether the instant non-permission disposition was a deviation or abuse of discretion

1) The permission to occupy and use public waters under the former Public Waters Management Act is a disposition to grant a specific person the exclusive right called the exclusive right to use public waters, and in principle, the determination of whether to take such disposition or its contents belongs to the discretion of an administrative agency. Such discretionary disposition cannot be deemed unlawful unless there is an error in the fact-finding, which serves as the basis for exercising the discretionary power, or there is an error in the application of the relevant statutes (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2004).

However, according to the facts acknowledged earlier, the ground for non-permission of the instant case is "constition of consent of the fishermen who can be permitted even by the person having the right to consent in the instant application," and on the other hand, the supplementary intervenor, on behalf of the Plaintiff, comprehensively consented to the occupation and use of public waters to take over the period of 1 and 2 years prior to the filing of the instant report through the preparation of each agreement on behalf of the fishermen of the instant case, and such consent cannot be deemed null and void or revoked.

Therefore, even if the defendant has discretion to decide whether to grant the application of this case, it is deemed that there was a serious error in the above fact-finding, which is the basis of the exercise of discretionary power, and therefore, the non-permission of this case is ultimately a law that the defendant abused or deviates from discretionary power.

2) Also, considering the evidence mentioned above as well as the aforementioned facts, the witness D’s testimony, the fact-finding results with respect to the fishery research institute at the South Korean University prior to the trial, and the overall purport of the pleadings, the Defendant’s non-permission disposition in the instant case constitutes deviation from and abuse of discretion, which violates the principle of proportionality and equality.

A) The instant application is an application for permission to occupy and use public waters to acquire cooling water for the development of the 1, 2th period prior to the filing of the report, and is ultimately unable to use the cooling water necessary for the operation of the 1, 2nd period to be rejected, and ultimately would cause serious disruptions to the supply of electricity by making it impossible to operate the 1, 2nd period prior to the filing of the report, which is ultimately impossible (the power generation of the 1, 4th period prior to the filing of the report, 1, 2th period prior to the filing of the report). On the other hand, the Plaintiff’s damages incurred to the instant fishermen due to the Plaintiff’s occupation, use, and 2nd period due to the Plaintiff’s public waters occupation and use of the 1, 2012 period and 92% of the mountain power consumption period, and the Plaintiff’s damages incurred to the instant fishermen due to the non-permission of each of the instant agreements are more likely to be suffered by the Intervenor through each of the instant civil licenses.

B) Article 8(7) of the former Public Waters Management Act provides that “Where it is deemed necessary to protect the marine environment, ecosystem, fishery resources and natural landscape when granting an occupancy or use permit, or to prevent damage to fishery, or to manage and operate public waters, it may impose additional clauses on the methods of occupancy or use, management, etc.” so that the system of permission for occupancy or use of public waters can be operated shotly. Thus, the Defendant appears to have been able to resolve the interests of both the Plaintiff and the instant fishermen harmoniously by stating that “the Plaintiff should make an active effort to reach an agreement with fishermen, not to take the instant non-permission disposition.”

C) As seen earlier, the main reason for the non-permission disposition of this case is “the failure of the fishermen’s consent (Withdrawal) due to the non-performance of the Plaintiff’s obligation to compensate for damages,” which can be seen as conflict between the interests of the fishermen of this case and the interests of the Plaintiff. In other words, in the permission for the application of this case, there may be conflict between the public interest, namely, the right to claim compensation for damages of the fishermen of this case and the private interest, namely, the Plaintiff’s right to claim compensation for damages, but, in substance, when considering the internal aspect, the damage to the fishermen’s right to claim compensation, which would be damaged by the failure of the Plaintiff’s power production, is private interest, and the damage to the general public is a matter of public interest. Therefore, it seems that the Defendant’s need not give priority to either of the interests in determining whether to grant permission for the application of this case, but rather to resolve the conflict between the interests of both parties harmoniously. In addition to such a meaning, it can be seen as an appropriate method to grant permission.

D) On December 1, 201, the Defendant issued a permit to occupy and use public waters with a period of about 13 years for the period of KRW 3 and 4 (including acceptance and drainage) prior to the filing date, and on October 4, 201, the head of Ulsan-si issued a permit to occupy and use public waters with a period of up to 15 years for the multiples of the period of KRW 1,200 prior to the filing date, KRW 3 and 4, respectively, prior to the filing date, and for the acceptance and multiples of the period of KRW 1,200. However, the Plaintiff’s application of this case is for the acceptance of the period of KRW 1,20 prior to the filing date, and as seen above, even if the Plaintiff obtained a permit for the multiples of the period of KRW 1,20, the Defendant rejected the application of this case, which is more likely to violate the principle of equity, compared to the extent of damage and environmental pollution caused by the acquisition of the period of KRW 1,300.

E) The Plaintiff’s compensation procedure for the instant fishermen under each of the instant agreements has not been implemented until now. As to this, the Intervenor asserted that the Plaintiff renounced the duty of compensation under the instant agreements, or was clearly aware of the intent to perform the duty of compensation. However, it does not seem that the Plaintiff did not perform the said duty of compensation in light of the Plaintiff’s attitude after the instant non-permission disposition, the Plaintiff’s status as a public corporation, and the financial position of the Plaintiff, etc. (a considerable portion of the trial conducted in the trial is to determine the expected amount of damage to the instant fishermen. Although it is irrelevant to the issues of the instant case, the Plaintiff cooperates with the procedure to resolve the dispute, the Plaintiff did not ultimately reach the ultimate resolution of the dispute due to appraisal costs).

E. Sub-committee

As seen earlier, the motion of this case shall be deemed to have a valid consent of the fishery owner who is the right holder related to the occupation and use of public waters, and the defendant's refusal disposition of this case on the premise that the motion of this case did not have such consent shall be deemed to have abused or deviate from discretion.

5. Conclusion

Therefore, the claim of this case is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed.

Judges

Handy (Presiding Judge)

Lives and worship

Anti-Sickdong

Site of separate sheet

Relevant statutes

Article 8 (Permission to Occupy and Use Public Waters) Article 8 (Permission to Occupy and Use Public Waters)

(1) A person who intends to engage in any of the following acts shall be prescribed by Presidential Decree:

Permission for occupancy or use of public waters (hereinafter referred to as "use or use") from the management agency of public waters (hereafter referred to as "use or use").

(n) Permission for occupancy and use shall be obtained: Provided, That each person who has obtained a reclamation license pursuant to Article 28 shall obtain such permission.

Where it is intended to occupy or use the relevant public waters within the scope of the purpose of a non-exclusive license, this shall not apply.

of this chapter.

5. Drawing in water from or flowing out water to any public water: Provided, That the national land and ocean shall be the same;

An act prescribed by Ordinance of the Ministry of Information shall be excluded.

(3) Where the management agency of public waters intends to grant permission for occupancy or use, it shall do so, as prescribed by Presidential Decree.

A prior consultation with the head of an administrative agency shall be made.

(4) The period and purpose of occupancy and use of a person who has obtained permission for occupancy and use and other matters subject to permission shall be prescribed by Presidential Decree.

Where any change in matters to be done is intended, it shall obtain permission for change from the management agency of public waters.

(5) Paragraph (3) shall apply mutatis mutandis to permission for modification under paragraph (4).

(7) Where the management agency of public waters grants permission for occupancy or use, it shall use the marine environment, ecosystem, fishery resources, and natural scenery.

Protection, prevention of fishery damage, or management and operation of public waters, as deemed necessary;

In cases of occupancy and use, a sub-section may be attached to the methods of occupancy and use, management, etc.

Article 11 (Period, etc. of Permission for Occupancy and Use)

The management agency of public waters shall grant permission for occupancy or use within the period classified as follows, as prescribed by Presidential Decree:

1. 30 years in the case of a wharf, a breakwater, a bridge, a floodgate, a building or other similar solid artificial structure;

2. Artificial structures other than those referred to in subparagraph 1: 15 years.

3. Occupancy and use under Article 8 (1) 2, 3, and 5 through 11: Five years; where the occupancy and use under Article 8 (1) 5 or 8 (1) 5 is intended for an operator of the electric utility business under Article 2 of the Electric Utility Act to install and operate the electric source equipment, 30 years;

Article 12 (Standards for Permission for Occupation and Use, etc.)

Where a person has a right likely to be prejudiced due to such permit, consultation, or approval, which is determined by Presidential Decree (hereinafter referred to as "person entitled to occupancy or use of public waters") in granting permission for occupancy or use, or holding consultation on occupancy or use of public waters pursuant to Articles 8 and 10, the management agency of public waters shall not grant such permission, consultation, or grant such approval: Provided, That the foregoing shall not apply to any of the following cases:

1. Where a person entitled to occupancy or use of public waters consents to the occupancy or use of the relevant public waters;

2. Public works prescribed by Presidential Decree, such as national defense or the prevention of natural disasters by the State or local governments;

for occupancy or use;

Enforcement Decree of the Public Waters Management and Reclamation Act

Article 11 (Priority Order, etc. of Permission for Occupancy and Use)

(3) The management agency of public waters shall grant permission for occupancy or use under Article 8 of the Act or consult on occupancy or use under Article 10 of the Act.

When intending to make a deliberation or approval, etc., the period of application shall be pursuant to subparagraphs 1, 2 and the proviso to Article 11 (3) of the Act;

If the period is not more than the period, the applicant shall recognize the period equivalent to not less than 1/2 of the application period.

Permission for occupancy or use, consultation, or approval: Provided, That the State or a local government shall use or approve it for public use or public use.

Where it is deemed particularly necessary for public use, etc. or in consideration of conditions, etc., such matters;

not to do so.

Article 12 (Right Holders, etc.)

(1) "Persons who hold rights prescribed by Presidential Decree" in the main sentence of Article 12 of the Act with the exception of its subparagraphs means the following:

person who falls under any of the following subparagraphs.

1. A person who has obtained permission for occupancy or use under Article 8 of the Act;

2. A reclamation licensee referred to in Article 28 of the Act;

3. A fishery holder referred to in subparagraph 11 of Article 2 of the Fisheries Act;

4. A person who has obtained a fishery license under Article 8 of the Fisheries Act;

5. Permission for sectional fisheries, cultivation of inland sea water and seed production fisheries under Article 41 (3) of the Fisheries Act;

person who received such

(3) The management agency of public waters shall be a person who intends to occupy or use public waters in granting permission for occupancy or use, consultation, or approval.

The damage under the main sentence of Article 12 of the Act shall be anticipated between persons falling under any subparagraph of paragraph (1).

If a dispute over rights arises, reference shall be given to the opinions of the relevant agencies in accordance with the following classifications:

the corporation.

1. Disputes in zones falling under subparagraph 1 (a) and (b) of Article 2 of the Act: Any of the following:

applicable agency

(a) Fisheries pipes designated by the Minister of Oceans and Fisheries pursuant to subparagraph 4 (b) (i) of attached Table 4 of the Enforcement Decree of the Fisheries Act;

Korea Specialized Survey, Research or Educational Institution

(b) Assessment agents registered pursuant to Article 86 of the Marine Environment Management Act;

2. Dispute within the area falling under subparagraph 1 (c) of Article 2 of the Act: pursuant to Article 53 of the Environmental Impact Assessment Act.

ad hoc Environmental Impact Assessment Agent

(4) The management agency of public waters shall determine as to whether a right likely to be damaged under Article 12 of the Act.

The following standards shall be examined:

1. The title of the right holder referred to in each subparagraph of paragraph (1) by the relevant permit for occupation and use, consultation, or approval;

Whether it is impossible to use public waters or adjacent land according to the volume of the land;

2. Public waters or their adjoining areas without taking such measures as the installation of facilities that prevent damage;

Whether land can not be properly used or not. Finally,

심급 사건

-부산지방법원 2013.6.13.선고 2012구합5191

부산고등법원 2015.7.22.선고 2013누2044

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