In a case where the head of Busan National Land Management Office, who was delegated with the authority of the Minister of Land, Transport and Maritime Affairs as part of the "fourth River Slaughter Project", concluded the "Songnam-do Do Do Do Do ," and thereafter notified the Gyeongnam-do Do Do Do , and the Gyeongnam-do Do applied for the injunction of infringement, the case holding that one of the parties to the above agency agreement is the Gyeongnam-do Do Do Do , not the Gyeongnam-do Do , and the agency agreement cannot be

In a case where the head of Busan National Land Management Agency, who is delegated with the authority of the Minister of Land, Transport and Maritime Affairs as part of the "fourth River Slaughter Project", entered into an agreement on the vicarious execution of the project for the prevention of infringement, and thereafter notified the Gyeongnam-do Governor of the cancellation of the agreement on the vicarious execution for reasons of non-performance, and the Gyeongnam-do applied for a disposition of prohibition of infringement, the case holding that the ground of the above vicarious execution agreement is Article 28 (2) of the River Act, and the parties who will execute river works on behalf of the Gyeongnam-do shall be the Gyeongnam-do Governor, who is not the Gyeongnam-do, and the vicarious execution of river works pursuant to the vicarious execution agreement shall be deemed to be a private contract between the parties to the contract on the rights and obligations of the Gyeongnam-do Governor,

Articles 8(1) and 28(2) of the River Act; Article 28(4) of the Enforcement Decree of the River Act; Article 11 of the Local Autonomy Act; Article 300(2) of the Civil Execution Act

Gyeongnam-do

Republic of Korea (Korean Government Legal Service et al., Counsel for the plaintiff-appellant)

Changwon District Court Order 2010Kahap672 dated January 26, 2011

1. The creditor's appeal is dismissed;

2. Costs of appeal shall be borne by the creditor.

The decision of the court of first instance shall be revoked. The debtor shall not engage in any act contrary to the agreement on the vicarious execution of the project of the Nakdongdong-gu, October 1, 2009, which was conducted between the creditor and the debtor, such as directly executing each construction described in attached Form 1, or having a person other than the creditor execute it.

1. Basic facts

In full view of the records and the overall purport of the examination of the case, the following facts are substantiated.

A. The Balanced National Development Committee (amended by Act No. 9629, Apr. 22, 2009; Article 22 of the Special Act on Balanced National Development; the name of the regional development committee was changed to that of the same day) under the debtor’s control decided to implement a four-dimensional improvement project as the Korea-type Green New Zealand project on December 15, 2008. Around June 2009, a comprehensive improvement plan for national rivers, etc., which was a four-dimensional master plan for national rivers, became final and conclusive.

B. Article 2 of the Regulations on the Composition and Operation of the Fourth River Planning Group prepared by the debtor while promoting the four major river improvement projects (amended by the Presidential Directive No. 242 of Jan. 29, 2009) provides that "the term "the fourth river" means the Han River, the Nakdong River, the Geum River, the Geum River, and the Yeongsan Seomjin River. The term "the four major river slaughter project" means a project implemented in accordance with the river basin comprehensive water control plan and the basic river plan under Articles 3, 24 and 25 of the River Act and other relevant Acts and subordinate statutes to prevent flood and droughts among the projects implemented for the four major rivers, to solve water problems, to restore and utilize the river ecosystem and to promote balanced regional development and regional economy, and the provisions on the organization and operation of the four major river conservation promotion headquarters (the Presidential Decree No. 268 of May 10, 2010), and the term "the comprehensive river plan" means a project for the restoration and utilization of the river basin and the comprehensive river plan under Article 24 of the River Act.

C. The Minister of Land, Transport and Maritime Affairs’s promotion headquarters for the 4th River Pulvers established pursuant to the provisions on the organization and operation of the said 4th River Pulvers Promotion Headquarters shall prepare guidelines for the management of the 4th River Pulvers Project and the execution of the agency works (hereinafter “instant implementation guidelines”). This includes the details of the project management applicable to river works directly executed by the local land management agency among the projects implemented by the 4th River Pulvers, and the details of the management of the agency works applicable to river works performed by the Mayor/Do Governor pursuant to Article 28 of the River Act and Article 28 of the Enforcement Decree of the same Act, and the preparation of an agreement entered into between the head of the Regional Construction and Management Administration and the Mayor/Do Governor with respect to the agency works (attached Form 2).

D. On June 12, 2009, the Minister of Land, Transport and Maritime Affairs notified the head of the Regional Construction and Management Administration, including the head of the Busan Regional Construction and Management Administration, of the details of the project to be implemented by the local government offices with respect to the four-party river-speaking project.

E. On June 22, 2009, the Minister of Land, Transport and Maritime Affairs, entrusted with the authority of the Minister of Land, Transport and Maritime Affairs, notified the project contents of the April River Slaughter on the following: (a) on October 1, 2009, the Minister of Land, Transport and Maritime Affairs (hereinafter “the instant agency agreement”) entered into an agreement on the vicarious execution of the Nakdong River Slaughter Project (hereinafter “the instant agency agreement”) with the Mayor/Do governor of the uppernam-do, attaching a copy of the official document, such as the instant implementation guidelines, the construction sections division status of the fourth River project, the project quantity and drawings by construction section, etc.; and (b) the main contents of the agreement are as stated in [attached Form 3].

F. On the other hand, on November 15, 2010, the debtor notified that he will cancel the instant agency agreement on the grounds of non-performance refusal.

(g) Relevant statutes: Omitted;

2. Determination as to the defense prior to the filing

A. The parties' assertion

1) Creditors

A) Even if Article 28(2) of the River Act provides that the Minister of Land, Transport and Maritime Affairs may allow the Mayor/Do Governor to execute river works on his/her own, it is not prohibited by the Minister of Land, Transport and Maritime Affairs under his/her jurisdiction to conclude a private contract on the vicarious execution of river works with a creditor who is not the

In addition, even where the administrative agency's expression of the basis laws and regulations is a common example in carrying out administrative activities, there is no phrase that the agreement is based on Article 28 (2) of the River Act, anywhere in the instant agency agreement.

Considering the following circumstances, it is clear that the instant agency agreement is a private contract that a debtor enters into with a creditor who is not the Do Governor of the Gyeongnam-do.

(1) First of all, according to Article 3(3) and (4) of the instant enforcement guidelines, the executing entity of the construction is a Metropolitan City/Do, which is a local government.

(2) In the signs of the instant agency agreement, the subject of the agreement is indicated as “Gyeongnam-do Office,” and the end of the agreement also indicates the subject of the agreement as “Seoul-do Governor.”

(3) Article 13(1) of the instant agency agreement provides that “B (Seoul Do Governor) may entrust all or part of the project to a basic local government, etc. . . . . Inasmuch as the other party to the instant agency is a basic local government, not the head of the Si/Gun, the truster of the re-entrustment shall also become a creditor. In addition, in placing an order for river works pursuant to Article 9(1) of the instant agency agreement, a creditor who is not the Do Governor shall be a contractor, and Articles 17, 18, and 19 shall not be borne by the Do Governor, and only the creditor shall bear the obligation.

(4) The Busan Regional Land Management Office, which is a party to the instant agency agreement, also indicated the subject of the agreement as a creditor when notifying the cancellation of the agreement.

(5) The head of the headquarters headquarters for the four major courses of a debtor-affiliated community also explained to the press that "a creditor cancels an acting agreement in violation of the principle of trust and good faith under the Civil Act" was aware of the parties to the instant agency agreement as a creditor and its nature as a contract under the private law.

(6) The provisions of Articles 16 through 20 of the instant agency agreement include matters concerning the rights and obligations under private law, and in particular, Article 22 explicitly states that the agency agreement is a contract under private law by setting the reasons for modification, cancellation, and termination of the agency agreement.

B) Meanwhile, the creditor who is a party to the agreement did not refuse the implementation of the instant agency agreement.

Nevertheless, the obligor rescinded the instant agency agreement on the ground of the obligee's refusal of performance, and the cancellation of such agency agreement is unlawful because it does not meet the requirements.

Therefore, the debtor is seeking provisional disposition, such as the purport of the application, in order to avoid irrecoverable damages as the executor of the agency work under the instant agency agreement.

2) The debtor

The subject of the instant agency agreement is the head of the Busan Regional Construction and Management Administration and the Mayor/Do governor, and the creditor is not a party to the instant agency agreement, so the creditor cannot be deemed to have any rights or obligations against the debtor in connection with the instant agency agreement. Therefore, the creditor is not eligible for the application.

In addition, the instant agency agreement is merely a method of internal exercise of authority between administrative agencies with respect to the vicarious execution of national rivers, and it cannot be deemed a contract concluded between the parties concerned, and thus the legal relationship surrounding the instant agency agreement cannot be the subject of legal disputes.

Therefore, the obligee’s petition of this case is unlawful.

B. Determination

1) In light of the above facts alleged in the relevant statutes and the following circumstances, one of the parties to the instant agency agreement shall be deemed to be the Do Governor, not the creditor.

A) Except as otherwise provided by the Act, the affairs of national rivers are the state affairs that cannot be handled by local governments (see Article 11 of the Local Autonomy Act). According to the provisions of the River Act, the management of national rivers shall be conducted by the Minister of Land, Transport and Maritime Affairs (Article 8(1) of the River Act), and the Minister of Land, Transport and Maritime Affairs may require the Mayor/Do Governor to execute river works on his/her behalf (Article

However, according to the above facts, when a debtor establishes and implements a four-party river master plan based on Articles 3, 24, and 25 of the River Act, which is a national river, the Minister of Land, Transport and Maritime Affairs, the managing authority of the four-party rivers, prepared the execution guidelines of this case where part of the river work is delegated to the Mayor/Do Governor pursuant to Article 28 (2) of the River Act, and accordingly, the Busan Regional Construction and Management Office entrusted with the authority of the Minister of Land, Transport and Maritime Affairs with the authority of the Minister of Land, Transport and Maritime Affairs (attached Form 1) entered into the agency agreement of this case by proxy to the Gyeongnam-do Governor, so the basis of the agency agreement of this case is Article 28 (2) of the River Act. Accordingly, the party who will execute river work on behalf of the Minister shall be deemed the Gyeongnam-do Governor.

B) The first head of the instant agency agreement, based on the instant guidelines, clearly states that “The head of the Busan Regional Construction and Management Office (hereinafter “A”) and the Gyeongnam Do governor (hereinafter “B”) who is the contractor of the construction work, shall agree on the following matters” with respect to the vicarious construction work of the Nakdongdong River (hereinafter “project”)” in its first head.

C) In contrast, Article 28(2) of the River Act provides that the Minister of Land, Transport and Maritime Affairs may have the Mayor/Do Governor act on his/her behalf on the national river, but it is difficult to present a case where the Minister of Land, Transport and Maritime Affairs or the head of the Busan Regional Construction and Management, who has been delegated by him/her, enter into a private contract with a creditor who is not the Gyeongnam Do Governor on the affairs of national rivers and vicarious execution

2) In addition, if river works are performed by proxy pursuant to the instant agency agreement pursuant to Article 28(2) of the River Act, as seen earlier, the form and purport of the provisions of the River Act and the Enforcement Decree thereof are delegated to the Mayor/Do Governor with the authority of the Minister of Land, Transport and Maritime Affairs concerning river works (Article 28(2) of the River Act and Article 28(4) of the Enforcement Decree of the same Act), the nature of river works related to the four major river projects is the state affairs requiring uniform processing across the nation, and the cost of river works is borne by the State (Article 60(1) of the River Act and Articles 6 and 7 of the instant agency agreement), regular reports, audits, and inspections, etc. (Article 13, 16, and 17 of the Enforcement Decree of the instant agency agreement, and Articles 8, 14, and 15 of the instant agency agreement cannot be deemed to be the vicarious execution of the instant river works by the Minister of Land, Transport and Maritime Affairs as a contracting agent with the State agreement.

3) Meanwhile, as a creditor’s assertion, a metropolitan local government, which is not a Mayor/Do Governor, has included some provisions of the instant agency agreement, as well as some provisions of the instant agency agreement, indicating that it is the subject of the instant agency agreement. In addition to the provisions on the obligations, etc. borne by the creditor under the instant agency agreement, the fact that the provisions on the grounds for cancellation and termination of the agreement are included in the instant agency agreement, as seen earlier, includes the provisions on the grounds for cancellation and termination of the agreement. The head of the headquarters headquarters for promoting the four major courses belonging to the debtor, which

However, as seen above, it is based on Article 28 (2) of the River Act, and the Minister of Land, Transport and Maritime Affairs performed by a person entrusted with the affairs of the State pursuant to the delegation by the Minister of Land, Transport and Maritime Affairs. Thus, it is not possible to consult or enter into an agreement on the contents and division of affairs, authority and responsibility of the delegated affairs among the persons related to the delegation of the agency. Thus, the provisions of the instant agency agreement asserted as an agreement on the rights and obligations of creditors are to clearly and clearly define the duties, authority and responsibility, etc. of the instant river work agency. Even if the agreement and the guidelines of the instant enforcement, as well as the agreement and the guidelines of the instant enforcement, include matters that can be misunderstood as a contract under private law entered into between the creditor and the person related to the agency, which is a local government, and the Do Governor, which is an administrative agency, without strictly distinguishing the instant agency agreement from the creditor, and it is difficult to deem the agency agreement as a contract under private law based solely on such circumstances.

3. Conclusion

Therefore, the creditor is a party to the instant agency agreement, and the creditor's application of this case premised on the fact that the instant agency agreement is a judicial contract between the parties to the instant agency agreement is unlawful. Therefore, the decision of the court of first instance is just in conclusion, and the creditor's appeal is dismissed and it is so decided as per Disposition.

[Attachment] The construction of the Nakdong River Project: omitted

Judges Han Yang-dae (Presiding Judge) (Presiding Judge)