Han-ju Co., Ltd. (Attorney Jeong full-time et al., Counsel for the defendant-appellant)

Korea (Law Firm International, Attorneys Ha Man-young et al., Counsel for the defendant-appellant)

September 9, 2010

Ulsan District Court Decision 2009Gahap941 Decided August 19, 2009

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the above part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

[Claim]

The defendant shall pay to the plaintiff 3 billion won with 20% interest per annum from August 20, 2009 to the day of complete payment (the plaintiff shall have reduced the claim in the trial).

【Purpose of Appeal】

1. The plaintiff;

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 1.566 billion won and 20% interest per annum from the day following the date of the judgment of the court of first instance to the day of complete payment (it was reduced within the extent of the purport of appeal by reducing the purport of the claim as above by reducing the purport of the appeal as above).

2. The defendant;

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

가. 원고 회사는 1987. 3. 17. 울산석유화학공업단지에 입주한 기업체들을 위한 전기, 증기, 각종 용수의 생산 및 공급과 기타 유틸리티의 시설에 관한 사업 등을 목적으로 하여 울산석유화학공업단지에 입주한 18개 업체가 공동으로 출자하여 설립한 회사로서, 1991.경 통상산업부장관으로부터 집단에너지사업법 제9조 제1항 에 의한 집단에너지사업허가를 받았다(그 후 원고 회사의 발전설비용량이 당초 150㎿에서 200㎿로 증설되어 1996. 6.경 그에 따른 변경허가를 받았다).

나. 원고 회사는 울산석유화화학공업단지에 입주한 기업체들에 대한 안정적인 전기공급을 위하여 한국전력공사 신울산전력소(전기수급지점)에서 울산석유화학공업단지에 이르는 구간에 154㎸ 송전철탑 및 송전선을 설치하기로 하고, 1988. 10. 1. 피고 산하 부산지방철도청장으로부터 송전철탑의 설치부지로 사용할 별지 목록 기재 각 토지(이하 이 사건 각 토지라고 한다)를 포함한 국유지 10필지에 대하여 사용기간을 1990. 12. 31.까지로, 사용료를 연 금 187,600원으로 하는 사용·수익허가를 받은 후, 그 무렵 이 사건 각 토지를 포함한 국유지상에 송전철탑 및 송전선을 설치하였는바, 위 사용·수익허가의 주요 내용은 다음과 같다.

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Article 2 (Period of Use)

From October 1, 1988 to December 31, 1990

Article 3 (Rent)

The user fees shall be KRW 187,600.

Article 11 (Cancellation of Permission for Use)

In cases falling under any of the following subparagraphs, permission for use may be revoked for all or part of the property permitted at any time:

1. Where it is necessary for official use, public use, or public works;

2. Where he subleases the permitted property or transfers its rights; and

3. When he violates this condition of permission.

4. Where the matters deemed necessary for the management of property and instructed by related Acts and subordinate statutes related to State property or our headquarters are not implemented.

Article 12 (Compensation for Damages upon Revocation of Permission for Use)

Even if the cancellation of permission for the violation of this condition of permission causes damage to employees, our headquarters shall not compensate for such damage.

Article 14 (Return of Property to be Used)

When the period of use expires or the property used is returned due to the cancellation of permission, it shall be returned to the original state in the participation of the staff of the party office.

(Special Conditions)

1. Where it is necessary to increase the railroad lines due to the increase in demand for a petroleum chemical complex in the future, or where there is a request from the Administration for removal of the main cable lines at the time of the increase or establishment of the railroad lines due to the needs of the Korea National Railroad, the removal, repair or removal of the facilities shall be made at the expense of the Company within four months;

2. To resolve all problems arising from crossing or paralleling the power transmission line under the responsibility of the person who has returned to his company.

3. The steel tower in the place of loading and unloading shall be installed sufficiently in the tramways (not less than 30 meters wide, not less than 17 meters high between electric lines and tramways) and shall be installed in such a way that it does not interfere with the duplicity and expansion of the premises of the Do;

4. Electric wires for the parallel parts of railroads shall be installed at the request of the office and under the supervision of the office so that the safety rates of supporting goods and electric wires may be sufficiently increased so as to prevent the collapse of steel towers and the cutting of electric wires from being dangerous.

C. After that, the above permission for use and profit-making of state property has been renewed on the same condition (the increase in user fees and usage fees) as the unit of 2-3 years. The plaintiff company applied for extension of the period of permission for use and profit-making to the Korea Rail Network Authority (the Minister of Land, Transport and Maritime Affairs entrusted with the management of state property related to railroad facilities including each land in this case) under the defendant to the Yong-Nam regional headquarters under the defendant (the Minister of Land, Transport and Maritime Affairs) for extension of the period of permission for use and profit-making. On December 26, 200, the above permission for use and profit-making of each land in this case

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Article 2 (Period of Use)

From January 1, 2006 to December 31, 2008

Article 3 (Rent)

User fees shall be the amount of separate notice each year.

Article 11 (Cancellation of Permission for Use)

In cases falling under any of the following subparagraphs, permission for use may be revoked for all or part of the property permitted at any time:

1. Where it is necessary for official use, public use, or public works;

2. Where he subleases the permitted property or transfers its rights; and

3. When he violates this condition of permission.

4. Where the matters deemed necessary for the management of property and instructed by related Acts and subordinate statutes related to State property or our headquarters are not implemented.

Article 12 (Compensation for Damages upon Revocation of Permission for Use)

Even if the cancellation of permission for the violation of this condition of permission causes damage to employees, our headquarters shall not compensate for such damage.

Article 14 (Return of Property to be Used)

When the period of use expires or the property used is returned due to the cancellation of permission, it shall be returned to the original state in the participation of the staff of the Korean headquarters.

Provided, That this shall not apply where the restoration of the property to be used is unnecessary due to the nature of the purpose of use and the approval of the above headquarters for the change of the original status is obtained.

Article 19 (Additional Conditions)

1. When the permitted period for this permitted property expires or even during the permitted period expires, the original return or change of location shall be made at any time on the user's expense, and no objection or damage (such as original return and change costs) shall be raised against it.

5. When a person desires to use continuously after the term of permission expires, he/she shall file an application for permission to continue to use with the Korean Headquarters two months before the term of permission expires;

라. 한편, 피고 산하 부산지방국토관리청은 2001. 6.경부터 국도 31호선 중 온산-두왕 간(울산 울주군 온산읍 신포리부터 울산 남구 두왕동까지 6.5km 구간) 국도 건설공사(이하 이 사건 국도건설공사라고 한다) 계획을 수립·추진하는 과정에서 원고 회사의 송전철탑 중 4호 철탑이 이 사건 국도예정지와 인접해 있고, 5호 철탑과 6호 철탑 사이의 송전선 및 8호 철탑과 9호 철탑 사이의 송전선이 전기사업법 제67조 에 의한 기술기준에 미달{일반국도 위를 지나가는 154㎸ 송전선의 경우 송전선과 도로 노반 사이에 19m의 이격거리(지상고)가 확보되어야 하는데, 위 각 송전선은 그 이격거리(지상고)가 5.6m 및 11.4m에 불과}하여, 4호 내지 9호 철탑과 그 구간의 송전선 전부(이하 이 사건 송전철탑 및 송전선이라고 한다)에 대한 이설작업이 불가피하게 되었다.

E. Accordingly, on October 22, 2002, the Busan Regional Land Management Office requested the Plaintiff Company to hold consultation on the relocation of the transmission tower and the transmission line, and the Plaintiff Company sent a reply to the Busan Regional Land Management Office (the summary is that all the expenses incurred in the relocation of the transmission tower and the transmission line should be borne by the Busan Regional Land Management Office, and the site for the transmission tower and the transmission line should be secured by the Busan Regional Land Management Office to provide the Plaintiff Company with the expenses incurred in the relocation of the transmission tower and the transmission line) The above compensation office notified the Plaintiff Company of the plan for the relocation of the transmission tower and the transmission line through the Busan Regional Land Management Office, which is the shop construction service company, and requested the Plaintiff Company to provide the compensation for the damages incurred by the Plaintiff Company on January 16, 2004 through consultation on the removal of the transmission tower and the transmission line and the calculation of the expenses incurred therefrom. The Plaintiff Company did not notify the Plaintiff Company of the plan for the removal of the respective removal tower and the distribution line and its calculation expenses incurred therefrom on January 24, 2005.

F. After that, on May 3, 2007, the Busan Regional Land Management Office sent to the Plaintiff Company an official door requesting the relocation of the transmission tower and the transmission line. In the above official door, there was no mentioning whether the Plaintiff Company will pay all the expenses incurred in the relocation of the transmission tower and the transmission line, in particular, all the expenses incurred in the relocation of the transmission tower and the transmission line, as mentioned above.

G. Of that, the Busan Regional Land Management Office, with respect to the relocation of the transmission tower and the transmission line in question, stated that the conditions of permission for use and profit-making of each of the instant land to Korea Rail Network Authority on July 27, 2007 for public use, public use, or public works and that if the Plaintiff Company requires the relocation of the transmission tower and the transmission line at its own expense, it is possible to remove the transmission tower and the transmission line at the Plaintiff Company’s expense for the instant national road construction works, and if it is stipulated that the removal of the transmission tower and the transmission line can be made at the Plaintiff Company’s expense, it is difficult for the Busan Regional Land Management Authority to take measures for delay of the removal of the steel tower in advance, which is located within Section 8 of the instant construction work, because the said construction work is located within Section 4 of the instant transmission tower planned by the Korea Rail Network Authority, but it is difficult for the Korea Rail Network Authority to take measures for delay of the instant construction work to ensure that the relocation of the steel tower is not an inevitable obstacle to the national road construction works of this case.

H. After that, on October 25, 2007, the Busan Regional Land Management Office again requested the Korea Rail Network Authority to cancel permission for use and profit-making of the Plaintiff Company on the ground of Article 28(3) of the State Property Act (the Office of Administration may withdraw permission when the State or a local government requires the administrative property, etc. permitted to use and profit-making to be directly used for official or public purposes) and to transfer the steel tower No. 4 to the early stage at the cost of the Plaintiff Company.

I. Accordingly, on March 4, 2008, the Youngnam Regional Headquarters of the Korea Rail Network Authority: (a) notified the Plaintiff Company that the land of this case was subject to the project to promote the Donnam Line and that the extension of the permission period for use and profit-making was impossible at the expense of the Plaintiff Company until the expiration of the permission period ( December 31, 2008). On July 17, 2008, the Busan Regional Land Management Office notified the Busan Regional Land Management Office of the policy to deny the extension of the permission period for use and profit-making.

(j) On August 5, 2008, the Busan Regional Land Management Office sent official doors to the Plaintiff Company on August 5, 2008, and requested that the Plaintiff move to the transmission towers and transmission lines of this case at the expense of the Plaintiff Company as soon as the period of permission for use and profit-making of each of the land of this case expires.

(k) On October 29, 2008, the Plaintiff Company issued an order against the above measures of the Korea Rail Network Authority and the Busan Regional Land Management Authority requested an extension of the period of permission to use and profit from each of the instant land to the Korea Rail Network Authority, and thus, on November 3, 2008, the Young-nam Regional Headquarters of the Korea Rail Network Authority sent a public notice requesting consultation with the Busan Regional Land Management Authority on the extension of the period of permission to use and profit from the instant land. However, the Busan Regional Land Management Authority shall relocate the transmission tower and the transmission line along with the expiration of the period of permission to use and profit from use and profit from use and profit from use. However, the Plaintiff Company sent a reply to the effect that if the transmission tower and the transmission line are relocated at its own expense by October 2009, the extension of the period of permission to use and profit from use and profit from

Other. Accordingly, on December 18, 2008, the Korea Rail Network Authority notified the Plaintiff Company of the expiration date of the permission period for use and profit-making, and on December 26 of the same year, it notified the Plaintiff Company and the Busan Regional Land Management Office of the opinion that the permission period for use and profit-making expires as of December 31, 2008.

(m) After that, the Plaintiff completed the relocation of the instant transmission tower and the transmission line prior to the closing of argument in the trial room.

(n) Relevant statutory provisions

[State Property Act (Law No. 7325)]

Article 2 (Scope of Application)

This Act shall apply to administration and disposition of State property, except as otherwise provided for in other Acts.

Article 24 (Permission for Use and Benefit)

(1) Administrative property may be permitted to be used or profit therefrom to the extent that it does not interfere with its use or purpose.

(2) The preservation property may be used or profit-making to the extent necessary for the fulfillment of its preservation purpose.

(3) No person who has obtained permission for use or profit-making pursuant to the provisions of paragraph (1) or (2) shall construct any building or permanent facilities on the property so permitted: Provided, That the same shall not apply to construction on the premise that the management agency considers it necessary for the performance of administrative or preservation purposes.

(6) Where the period of permission expires, or the permission for use or profit-making is revoked or withdrawn pursuant to Article 28, a person who has obtained permission for use or profit-making pursuant to the provisions of paragraphs (1) and (2) shall return the relevant property to its original state: Provided, That where the management agency approves in advance any change in its original state, it may return the

Article 27 (Period of Permission for Use and Benefit)

(1) The period of permission for use and profit-making of administrative property, etc. shall not exceed three years: Provided, That in cases falling under Article 26 (1) 1, the total amount of usage fees shall not exceed the period that reaches the value of the property donated.

(2) The previous permission period may be renewed only where permission for use and profit-making is granted on the property, the permission period of which expires by means of multiple methods. In such cases, the renewal period shall not exceed the period provided for in paragraph (1) whenever it is renewed.

Article 28 (Cancellation and Withdrawal of Permission for Use and Benefit)

(2) When the State or a local government requires administrative property, etc. permitted to be used or profit-making for any direct official or public use, an office of administration may withdraw its permission.

(3) In case of paragraph (2), when damage occurs to the person who has obtained the permission due to the withdrawal, the agency to use the property shall compensate for such damage under the conditions as prescribed by the Presidential Decree.

[Enforcement Decree of the State Property]

Article 30 (Compensation for Loss Resulting From Revocation)

The compensation amount under the provisions of Article 28 (3) of the Act shall be as follows:

1. Facility costs for the remainder of the permission period or costs required to move facilities (including transplanting trees; hereafter the same shall apply in this Article) based on standards as at the time of withdrawal of permission for use and benefit;

2. Where facilities are moved elsewhere or new facilities are installed due to the withdrawal of permission for use and benefit, the appraised amount of a loss incurred by the impossibility of doing business for such period.

[Electric Utility]

Article 72 (Relocation, etc. of Installations)

(1) Where causing or causing obstruction between electric installations for the electric utility or for private use and electric installations or other goods of another person, the person who thereafter gives rise to such obstruction or obstruction shall take measures necessary for the removal of such obstruction or obstruction or bear the expenses incurred in taking such measures.

(2) Where any ground objects and other goods established by another person has caused the electric installations for the electric utility to fail to meet the technical standards, the person who has established the ground objects and other goods shall either take measures necessary for making the relevant electric installations for the electric utility to satisfy the technical standards, or may request the operator of the electric utility to take necessary measures.

(3) An operator of the electric utility business shall, upon receipt of a request under paragraph (2), take necessary measures except for the cases as prescribed by the Presidential Decree, such as where he is unable to secure the site for relocation for such measures or where he is unable to make the said measures meet the technical standards, or where he is

(4) The expenses required for measures under paragraphs (2) and (3) shall be borne by the person who has set up the ground objects and other goods: Provided, That in the event that the owner or occupant of the land establishes the ground objects and other goods on such land after having set up electric lines in the air above the land of another person in accordance with Article 89, the relocation expenses may be reduced or exempted in accordance with the standards prescribed by Presidential Decree, such as the relocation plan for, and lapsed years

Article 92-2 (Special Cases concerning Supply of Electricity by Operators of Integrated Energy Supply Business)

(1) From among the integrated energy supply business operators who obtain business permission under Article 9 of the Integrated Energy Supply Act, those who have the power generation facility capacity prescribed by the Presidential Decree within the extent of not more than 300,000 kilowatt may supply electricity to the district of supply permitted under Article 9 of the Integrated Energy Supply Act, notwithstanding the provisions of Article 31 (1).

(2) An integrated energy business operator under paragraph (1) shall be deemed an operator of the district electric business in application of this Act.

[Enforcement Decree of the Electric Utility Act]

Article 59-2 (Special Cases concerning Supply of Electricity by Operators of Integrated Energy Supply Business)

The term “person who has the power generation facilities and capacity as prescribed by the Presidential Decree” in Article 92-2 (1) of the Act means the person falling under each of the following subparagraphs:

2. A person who runs an industrial complex collective energy business as defined in Article 2 (1) 2 of the Enforcement Decree of the Integrated Energy Supply Act and has the power generation facility capacity not exceeding 250,000 kilowatts;

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 10, evidence 12 through 15 (including paper numbers), evidence 6-1 through 3, purport of whole pleadings]

2. Judgment on the parties’ assertion

A. The parties' assertion

(1) Plaintiff

원고는 이 사건 청구원인으로, 원고 회사는 200㎿(20만㎾)의 발전설비를 갖춘 집단에너지사업자로서 전기사업법 제92조의2 제2항 에 의하여 같은 법 제2조 제10의3호 소정의 구역전기사업자로 의제되어 같은 법 제2조 제2호 소정의 전기사업자에 해당하므로 원고 회사 소유인 이 사건 송전철탑 및 송전선도 같은 법 제2조 제15호 소정의 전기사업용전기설비에 해당하는바, 같은 법 제72조 제1항 에 의하면 전기사업용전기설비 또는 자가용전기설비와 다른 사람의 전기설비 그 밖의 물건 간에 상호 장애를 일어나게 하거나 지장을 주는 경우, 후에 그 원인을 제공한 자는 그 장애 또는 지장을 제거하기 위하여 필요한 조치를 하거나 그 조치에 소요되는 비용을 부담하여야 한다고 규정하고 있으므로 이 사건 국도건설공사의 시행으로 인하여 이 사건 송전철탑 및 송전선에 지장을 초래하는 피고로서는 위 규정에 따라 원고에게 이 사건 송전철탑 및 송전선의 이설에 소요된 제반비용을 지급할 의무가 있다고 주장한다.

(2) Defendant

In regard to this, under Article 24 (6) of the State Property Act and the conditions for permission to use and profit from each of the lands of this case, where the period of permission to use and profit from each of the lands of this case as state property expires, the plaintiff shall remove the steel tower of this case and restore each of the lands of this case to the original state, and return all of the expenses required therefor to the defendant, and the plaintiff shall bear the expenses pursuant to Article 19 (1) of the above conditions for permission to use and profit from each of the lands of this case. Since the period of permission to use and profit from each of the lands of this case expires, the plaintiff has a duty to move to the steel tower of this case

B. Determination

살피건대, 위 인정사실에 의하면 한국철도시설공단 영남지역본부가 2008. 3. 24. 원고에게 이 사건 각 토지에 대하여 사용·수익허가기간의 연장이 불가능하니 허가기간만료시(2008. 12. 31.)까지 원고 회사의 비용부담하에 이 사건 송전철탑 및 송전선을 철거하라고 통보하였는바, 따라서 원고는 결국 이 사건 각 토지의 소유자인 피고에 대하여 위 사용·수익허가조건 제19조 제1호(허가기간 종료 뿐 아니라 허가기간 중에도 부산지방철도청의 필요시에는 원고의 비용부담으로 위치변경을 하게 되어 있다) 및 국유재산법 제24조 제6항 에 의하여 원고의 부담으로 이 사건 송전철탑 및 송전선을 철거하여야 할 의무가 있다 할 것이므로 그에 소요된 제반비용을 피고에게 청구할 수는 없다 할 것이고, 이 사건 송전철탑 및 송전선이 피고 산하 부산지방국토관리청이 시행하는 이 사건 국도건설공사로 인하여 전기사업법 제67조 에 의한 기술기준에 미달{일반국도 위를 지나가는 154㎸ 송전선의 경우 송전선과 도로 노반 사이에 19m의 이격거리(지상고)가 확보되어야 하는데, 위 각 송전선은 그 이격거리(지상고)가 5.6m 및 11.4m에 불과}하여 이 사건 국도건설공사가 본격적으로 시행될 경우 위 기술기준에의 부합을 위한 이설이 불가피해졌고, 피고 산하 부산지방국토관리청의 요청에 따라 한국철도시설공단 영남지역본부가 원고에게 위와 같이 사용·수익허가기간 연장의 불허를 통보하였고, 이에 반발한 원고의 사용·수익허가기간 연장 신청에 대하여도 피고 산하 부산지방국토관리청의 동의가 없음을 이유로 이를 불허한 사정(결국 이 사건 국도건설공사가 사용·수익허가기간연장 불허의 원인이 되기는 하였다)만으로는 피고에게 이 사건 송전철탑 및 송전선의 이설에 소요된 비용을 부담할 의무가 발생한다고 할 수는 없으므로 이를 전제로 한 원고의 위 주장은 더 이상 살펴 볼 필요 없이 이유 없다.

The plaintiff asserts that the electricity transmission tower and the electricity transmission line of this case failed to meet the technical standards under Article 67 of the Electric Utility Act due to the national highway construction executed by the Busan Regional Land Management Agency under the defendant, and that the removal of the electricity transmission tower and the electricity transmission line of this case is inevitable as part of measures to recover them. Thus, the defendant is obligated to pay the plaintiff all expenses required for the removal of the electricity transmission tower and the electricity transmission line of this case under Article 72 (3) and the main sentence of Article 72 (4) of the Electric Utility Act. However, the above provision applies to the case where the electricity supplier properly maintains electric installations by securing the right to use the site for the pertinent facilities legally, and it does not apply to the case where the right to use the site for the pertinent facilities was lost. Thus, even if the national highway construction of this case was caused, the plaintiff cannot claim the defendant for the removal expenses on the ground of the above provision as long as the period of permission for use and profit of each land expires (in this case, even if electric installations were installed on the land of other person without permission).

Although the Plaintiff asserts to the effect that it actually and permanently obtained permission to use or profit from the site of the transmission steel tower of this case, the Plaintiff’s assertion is without merit on the ground that the Plaintiff’s permission cannot be deemed to be a de facto permanent.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance shall be dismissed as part of the conclusion, and the defendant's appeal is justified, and the plaintiff's appeal is without merit. Thus, the part against the defendant among the judgment of the court of first instance against the defendant is revoked, the plaintiff's claim corresponding to the above cancellation is dismissed, and the plaintiff's appeal

[Attachment]

Judges Kim Yong-seok (Presiding Judge)'s profit