(영문) 대법원 2021.1.14. 선고 2015추566 판결

Attorney Lee Ho-hoon, Justice Park Byung-hun, Justice Park Ho-hoon, Justice Park Jong-chul, Justice Park Jong-chul, Justice Park Jong-chul, Justice Park Jong-chul,

Han Han-soo

Attorney Lee Jae-chul, Counsel for the plaintiff-appellant

Defendant

Minister of Public Administration

Government Legal Service Corporation (Law Firm LLC)

Attorney Seo-young, Justice Seo-young, Justice Seo-young, Justice Seo-young, Justice Seo-young, Justice Shin Byung-young, Justice Kim Min-young,

Kim Sung-soo, vice-zed, profit-making, Kim Chang-kick, Cho Jong-ho

Intervenor joining the Defendant

Kim Jong-si

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

Attorney Gangwon-gu, Kim Jin-jin, Park Jin-Jin, Park Jin-Jin, Chowon-kin, Kim Un-kin;

Kim Yong-chan

Conclusion of Pleadings

December 10, 2020

Imposition of Judgment

January 14, 2021

Text

The plaintiff's claim is dismissed.

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

Purport of claim

Among the tide embankments section of which reclamation has been completed in the Saemangeum Sea Area as of November 13, 2015, the defendant: (1) among the tide embankments whose reclamation was completed in the Saemangeum Sea Area as of November 13, 2015, (21, 15-2, 15, 15-1, 15-1, 11, 10, 9, 5, 1, 50, 50, 48, 47, 46, 45, 44, 43, 49, 49, 13, 203, 36, 203, 36, 200 Simsan-si, 200, 300, 200, 15, 15, 110, 14, 15, 14, 25, 36, 24, 361, 25, 27, 364, 27, 20

Reasons

1. Details and details of the instant decision

The following facts are not disputed between the parties, or can be acknowledged by considering the whole purport of the pleadings as a whole in the descriptions of Gap evidence 1, 2, and 3-1 to 3, Gap evidence 5, and 6.

A. Saemangeum Development Project is a national project that creates a total of 33.9km (including a drainage section and a connection section) around the world at a maximum of 33.9km (including a drainage section and a connection section) connected to the Gun and Gunsan in Jeollabuk-do, Jeollabuk-do. Two instances of drainage lock, 28,290 majors of land, and 11,810 majors of fences. B. Each embankment, which is an outer facility of reclaimed land of public waters, is 4.7 km in the case of embankments 1, as shown in the annexed Table 2, connected 4.7 km in the case of tide embankments 2, 9.9 km in the area of tide 3, 2.7 km in the area of tide 3, 2.4 km in the area of tide 4, 3, and 4, and 192 of the Local Government Organization Act, and the rest of the area of tide 2, 191.3 km in the amendment of the Local Government Organization Act.

D. On October 26, 2015, the Central Dispute Mediation Committee (hereinafter referred to as the “Committee”) established under the jurisdiction of the local government with which the defendant belongs the local government to which the remainder (hereinafter referred to as “dispensive embankment 1”) excluding 495, 496, which is the part of the reclaimed land of the Saemangeum Sea Embankment 1 (hereinafter referred to as “Saemando-ri”) among the reclaimed land of the Saemangeum Sea Embankment 1 (hereinafter referred to as “Saemando-ri”), the part of the reclaimed land of the Saemangeum Sea Embankment 1 (hereinafter referred to as “Saeungdo-ri-ri”) belongs, as a Gun in Jeollabuk-do-do-gun, which is the local government to which the local government belongs the part of the reclaimed land of the Saemangeum Sea Embankment 2 (hereinafter referred to as “Samando-si”).

① According to the office building dust on the development of land on the inside of the Saemangeum Sea Embankment, the determination of the embankment No. 1 and the embankment No. 2 under the jurisdiction of the Seoan-gun is likely to be more closely adjacent to the road network connected to the inland land important for the efficient utilization of the national land.

② The tide embankments Nos. 1 and 2 are linked to the west-gun and Kim Jong-si. Residents who will reside in each reclaimed land are in line with the administration efficiency to receive various infrastructure, such as administrative services, roads, electricity, water, communications, etc. from each adjacent local government. ③ Mangyeong River and Mangjin River have achieved natural boundaries in the Gun, Gun, Kim Jong-gu, and the jurisdiction of the tide embankments Nos. 1 and 2 is based on Mangyeong River and Mangjin River, the entire Saemangeum area can be clearly divided into the zone based on natural geographical features. The two west-gun main roads and Mangyeong River and Mangjin River constructed along the Dog-do river and used as roads may also be formed as artificial structures that distinguish the jurisdiction of reclaimed land.

E. On November 13, 2015, according to the resolution of the commission, the Defendant rendered a decision to determine the local government to which the tide embankment No. 1 belongs and the local government to which the tide embankment No. 2 belongs as Kim Jong-si (hereinafter referred to as the “decision of this case”), and notified the Plaintiff, the father-head of the Gun, and the Kim Jong-si, etc.

F. On January 1, 2015, the Plaintiff filed the instant lawsuit seeking revocation of the entire decision in this case with the Supreme Court.

2. Summary of the plaintiff's assertion

A. If Article 4(3) through (7) of the Local Autonomy Act excludes the pre-existing maritime boundary standard, 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, as it allows the defendant to arbitrarily determine the jurisdiction of the local government without any basis. The instant decision is unlawful as being based on the unconstitutional law

B. The Defendant’s exercise of discretionary power over the determination on the jurisdiction of reclaimed land must appropriately balance the interests of the relevant local governments and their residents. However, the instant determination is erroneous in the misapprehension of discretionary power due to the lack or omission of the consideration of important factors or lack of legitimacy and objectivity in balancing interests of the factors to be considered in the following point. At least, a tide embankment No. 2 ought to be attributed to the jurisdiction of the Gunsan City.

(1) The Saemangeum Sea Embankment area belongs to the waters under the jurisdiction of Gunsan-si, most of which are based on the maritime boundary lines since 1918.

Under the Saemangeum Master Plan, an industrial development axis connecting the Saemangeum Industrial Complex, the International Business Zone, and the Saemangeum New Port is promoting the linkage and development with the Gun Industrial Complex. Gunsan has included most of the embankments 1 and 2 in the basic urban planning, and Kim Jong-si has no experience in the operation of ports, unlike the Gunsan which has operated the Gun Industrial Complex.

(3) The current tide embankment No. 2 is not physically connected with Kim Jong-si and the Dogjin River does not play a role as a boundary because the river section ends before the area reaches the sea area.

(4) Present military and mountainous districts currently manage infrastructure facilities (such as roads, electricity, waterworks, drainage, etc.) for tide embankments 1 and 2 and provide services, such as cleaning and removal.

(5) The islands adjacent to the embankments 1 and 2 or the Gagdos belonging to the embankments 1 are under the jurisdiction of the Gunsan City, and due to the Saemangeum Development Project, fishermen of the Gunsan City suffered the largest damage.

3. Determination

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

1) 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 establish regulations concerning autonomy within the scope of statutes (Article 117(1)). Article 117(2) of the Constitution provides that, while generally guaranteeing autonomous administration by local governments, matters concerning the types of local governments and the organization and operation of local governments shall be prescribed by Acts (Article 117(2) and Article 118(2) of the Constitution

(See Constitutional Court Order 2015HunRa3 decided July 16, 2020)

2) 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. However, the boundary of a district under the jurisdiction of a local government and the alteration of a Chinese name shall be prescribed by the Presidential Decree. Notwithstanding Article 4(3)1(1) of the Public Waters Management and Reclamation Act, a local government to which a reclaimed land under the Public Waters Management and Reclamation Act (hereinafter referred to as " reclaimed land") 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) of the same Act provides that the Minister of the Interior and Safety and the Committee under his/her jurisdiction shall comply with when making a decision on the reversion of the jurisdiction of a reclaimed land, and does not specifically provide for the substantive standards or considerations

3) 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, public waters on land are determined by the competent local government on the basis of the land, which is the surface of the water or water existing above the “land” which is the object of a real right.

However, the bottom floor of the public waters on the sea is not considered as the "land which is the object of real rights". Thus, the construction of reclaimed land upon the execution of reclamation works falls under the case where there is a new land which does not exist before. Since the new created land does not belong to any local government under the former part of Article 4 (1) of the Local Autonomy Act, the State shall determine the competent local government in the form of law or in the form of a decision of the Minister of Public Administration and Security pursuant to Article 4 (3) of the Local Autonomy Act, and it does not belong to any local government until that time (see Constitutional Court Order 2020HunRa3, Jul. 16, 201).

4) In full view of the fact that the local government’s jurisdiction does not fall under the core area of the local autonomy system, but falls under the scope of the legislative formation authority; that is, the local government is established only in the case of the maritime public waters reclaimed land by the State’s decision; that, in determining the local government having jurisdiction over the maritime public waters reclaimed land, the State should take into account the efficient and balanced utilization, development, and preservation of the land (Articles 120(2) and 122 of the Constitution) and the balanced development between regions (Article 123(2) of the Constitution), as well as the balanced development between regions (Article 123(2) of the Constitution of the Republic of Korea) and the fact that it is difficult to provide more concrete criteria for determination in law, it cannot be deemed that Article 4(3) through (7) of the Local Autonomy Act and its subordinate committees did not specifically stipulate the substantive criteria for determination or consideration of the decision on the jurisdiction of the local government system or the Committee’s determination on the reclaimed land. The Plaintiff’s assertion in this part is without merit.

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

1) 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 a reclaimed land belongs by the Minister of the Interior and Safety, the customary law effect of "marine boundary standard on the jurisdiction of the 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 the local government to which the reclaimed land belongs: Provided, That the discretion of formation is not unlimited, but there is a limit that should be compared and balanced by comprehensively taking into account all relevant benefits into account. The Minister of the Interior and Safety and its affiliated committees are not unlimited, or where the said committee did not include the matters to be included in the subject of consideration of the profit balancing, or where there is a lack of legitimacy and objectivity even though the profit balancing, the competent decision should be deemed unlawful.

Considering the above purport of amendment of the Local Autonomy Act, when the Minister of Public Administration and Security and the competent commission determine a local government to which reclaimed land belongs, it should generally consider the following matters (see Supreme Court Decision 2010Du73, Nov. 14, 2013).

(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 such factors 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, telecommunications, etc., 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 interests of local governments that lose them as a result thereof, and the basis of living and economic interests of their residents, shall be taken into account.

6) In particular, in the case of a reclamation project, the whole reclamation project plan of which is formulated as a single plan, and which is carried out in a phased and successive manner by project details or district, the need for administrative support on the completed portion of the reclamation shall be the first determination on the ownership of a part of the area where the reclamation has been completed, not for the entire reclamation area, due to any other reason, the determination on the ownership of the portion may also have a significant impact on the determination on

In a case where a determination of attribution is made on certain areas of the relevant reclamation project, the entire implementation plan of the relevant reclamation project, the land use plan and use plan of the area of the reclaimed land, the development and use plan of the harbor, etc. shall be taken into account. If an inappropriate determination of attribution is made in part in light of the overall district of the jurisdiction, there is a risk that the overall implementation plan of the relevant reclamation project and the detailed land use plan of the reclaimed land may not be reflected in the relevant area, and there is a dispute between local governments at each time the determination of attribution is made, and the social and economic costs are increased, and it is not desirable to interfere with social integration. Moreover, if a determination of attribution is made on a certain area of reclamation, as the acquisition right of the local government having jurisdiction over the specific area of the reclaimed land, it may not be ruled out that the overall balance of profits or unnecessary consumption disputes are over each stage. In light of such circumstances, even in a case where a determination of attribution is made on certain areas of the area subject to the jurisdiction of the Gu, the entire area subject to reclamation should be distinguished from the jurisdiction.

2) Determination on the instant case

Upon examining the following circumstances in light of the legal principles as seen earlier, Gap evidence 1, 2, 5, 6, 7, and evidence 33-1, 2, Gap evidence 49, 50, Eul evidence 1 through 5, Eul evidence 1, 2, 15, Eul evidence 21-1, 2, Eul evidence 23-B, Eul evidence 24, 25, 27, 46, and 48, and the overall purport of arguments and arguments in light of the above legal principles, it is difficult to view that the defendant's decision in this case did not completely compare and balance all relevant benefits while making the decision in this case, or omitted matters that should be included in the subject of consideration of the balancing of interests, or where the decision in this case lacks legitimacy and objectivity, it cannot be deemed an unlawful disposition that deviates from or abused discretion.

① It is difficult to interpret the Saemangeum Master Plan to mean that a local government should have jurisdiction, since the industrial development axis is connected from the Gun Industrial Complex to the International Business Area and the Saemangeum New Harbor. In addition, according to the Master Plan for the Development of the Saemangeum New Harbor (No. 2010-88) and the Second Master Plan for the Construction of New Harbor (No. 2019-122 of the Ministry of Land, Transport and Maritime Affairs’s notification), the Saemangeum Harbor has management authority as a "national trade port" (Article 3(2)1 and Article 20(1) of the Harbor Act, attached Tables 1 and 2 of Article 3(1) of the Enforcement Decree of the Harbor Act, Article 3(2) of the same Act, and Article 3(1)1 and 3(2)2 of the Enforcement Decree of the same Act, as delegated by the Minister of Oceans and Fisheries, the head of the Gun regional maritime affairs and fisheries office, which is a specialized administrative agency affiliated with the Ministry of Oceans and Fisheries, even if not determined as a jurisdictional authority

In the decision of November 17, 2010, the defendant decided to vest the reclaimed land of the embankment Nos. 3 and 4 in the Saemangeum Seap, which is connected to the Si, Gun, and Gun, and the defendant filed a lawsuit seeking revocation of the above decision. In the decision of November 14, 2013, the Supreme Court decided that the whole reclamation area of the Saemangeum Seap in relation to the whole jurisdiction of the Si, Gun and Gun shall be classified into the zone A (Si, Gun), B (Si, Gun adjacent to the Si, Gun), and C (Si, Gun adjacent to the Si, Gun, and Gun), and that the whole reclamation area of the Saemangeum Seap in accordance with the above decision of the Supreme Court is insufficient to recognize that there was a change in the future situation, such as the connection structure, accessibility, anticipated residents' lives, efficiency of administrative services, etc. of the existing land and that the overall land use plan of the Si, Gun, etc., as well as the above decision of the Supreme Court was changed.

③ On the basis of the completion of reclamation, Mangyeong River and Mangjin River are largely divided into A, B, and C as shown in Attached Form 2. The Ministry of Land, Infrastructure and Transport stated that it was a plan to review the change of the closing point of the river area into a point adjacent to the sea according to the entire development plan, and the Saemangeum Development Agency also has the same plan.

(4) Taking into account both the part of reclaimed land on the side of the tide embankment, Subparag. 1 is to ensure the accessibility to the tide embankment and the efficiency of administration by allowing the tide embankment to be reverted to the father-gun, and that the tide embankment belongs to the Kim Jong-si. Even based on the evidence submitted by the Plaintiff, it is difficult to recognize that only the Gunsan City can manage the infrastructure of the tide embankment efficiently.

Although the Gabdodododododododododododododododododododododododododo 495, 496), it seems that there is no special administrative management for the convenience of residents in the Gun, by means of an unmanned island, even though the Gabdodododododo 495, which is the jurisdiction of the Gunsan City, seems to be inter alia, in the construction of a tide embankment, it seems that there is no special administrative management for the convenience of residents in the Gun City. In particular, in the construction of a tide embankment, the management entity is the Korea Rural Community Corporation, not the Gun City, but the Korea Rural Community Corporation, and the 496th of this year was the relationship between the new reclaimed land and the neighboring reclaimed land while reclaiming the surrounding island. In this situation, it is not reasonable to determine a plan to set the jurisdiction of the Gun, even the newly

6) The Saemangeum tideland was a large scale of 8% of the area of the nationwide tideland, and the fishermen in the Gun, Si, Kim Jong-si, and So it is difficult to view that the damage from the loss of public waters due to reclamation was limited to the Gun, Gun, and Gun. Rather, in the case of Kim Jeju-si, the damage from the loss of public waters due to the reclamation was caused by the embankment to completely prevent fishermen from using the tideland and the outflow of the sea by the embankment and the damage was high.

3) The Plaintiff’s assertion on this part is without merit.

4. Conclusion

The plaintiff's claim is dismissed without merit, and the costs of lawsuit shall be borne by the plaintiff, including the part resulting from the participation in the assistance. It is so decided as per Disposition by the assent of all participating Justices on the bench.