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| 1. Public Waters |
| A. Definition |
| "Public Water" means sea, seashore, river, lake, ditch or any other water surface or water flow used for public purposes and owned by the state. However, the Public Waters Management Act and the Public Waters Reclamation Act are not applicable to the following public waters: |
- Public waters to which statutory provisions relating to rivers are applicable as they are or mutatis mutandis;
- Public waters within agricultural production infrastructure according to the provisions in the Rural & Fishing Village Rehabilitation Act;
- Harbor facilities pursuant to the Harbor Act and fishing harbor facilities pursuant to the Fishing Harbor Act. |
| □ Sea.Seashore |
| ㅇ "Seashore" means the area between high-water mark and the area registered with land registry and it
was the "offshore area" in the old Public Waters Management Act which was effective until August 8,
1999 (referred to as "the Old Act" hereinafter). |
ㅇ Seashore is different from “tidal area” between high-water mark and low-water mark.
※ Coastal Wet Lands : Article 3.2, the Wet Land Conservation Act
(Inland wet land : lake, swamp or estuary area in land or island) |
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| □ Erosion Area |
| ㅇ "Erosion area" means land registered with land registry and submerged under water as a result of
erosion by water. |
| □ River, lake, dike, other water surface or water flow for public use owned by the state. |
| ㅇ Water surface used for a public purpose owned by local government or on properties owned by private
individuals does not constitute public waters. However, even state properties which are registered with
land registry and designated as river, stream or dike in terms of land category are still subject to the
statutory provisions relating to public waters unless their land categories are amended even if they may
have lost their original functions as water no longer flows over them. |
- As public water reclamation is done by putting earth, sand, rock or other objects manually into area which is submerged or covered by flowing water flowing water to create land (obtain land lot number in pursuit of land ownership), river, stream or dike that has already lost its function as public water as water has dried up is not the subject of reclamation in accordance with the Public Water Reclamation Act.
- In fact, area recognized as public water or registered with land registry such as forest is "erosion area" pursuant to Article 2.3 of the Public Waters Management Act. However, such an area is subject to the Public Waters Management Act and the Public Waters Reclamation Act is not applicable. Therefore, if a permit to reclaim forest or other land area is issued, such a permit is invalid in itself. |
| ㅇ Excavating a personal property adjacent to public water below water level is also subject to
occupation/usage permit pursuant to the Public Waters Management Act. |
| B. Public waters to which the Public Waters Reclamation Act is not applicable |
| ㅇ When it is necessary to alter dike or reservoir by reclamation pursuant to provisions in other laws or
regulations; |
| ㅇ When erosion area or tidal area recognized as personal property is reclaimed in accordance with the
Public Waters Management Act. |
| C. Differences between Laws relating to Public Waters in Application |
| ㅇ In the past, "objects to which laws relating to river are applicable as they are or mutatis mutandis" did
not constitute the public waters in the Public Waters Management Act but qualified for the public
waters in the Public Waters Reclamation Act. |
| ㅇ The Public Waters Management Act amended in August 9, 1999 and the Public Waters Reclamation Act
included state-owned rivers in the scope of public water all alike. However, the Public Waters
Management Act excluded rivers to which the River Act or the Small Stream Maintenance Act were
applicable from its scope while the Public Waters Reclamation Act included them. |
| 2. Public Waters Management Act VS Public Waters Reclamation Act |
| A. The nature of the Public Waters Management Act |
| □ It is a framework act and general law governing management of public waters. |
| ㅇ Unless stipulated otherwise in other laws, the Public Waters Management Act shall be applicable to
occupation, usage, maintenance and management of public waters. |
| ㅇ In permitting, discussing or approving occupation of usage of public water, agreement of an entity who
has a title to such a public water as specified in the laws and regulations relating to public waters
management shall be obtained in advance. |
| □ In installing structures in public water or occupying/using it, such a public water must be maintained in and restored to its original state. |
| □ Structure installed pursuant to the Public Waters Management Act can neither be owned by the entity permitted to install such a structure nor the entity may obtain a title to the structure.(restriction on registration) |
| B. The nature of the Public Waters Reclamation Act |
| □ It is a framework act and general law governing reclamation of public waters. |
| ㅇ Unless stipulated otherwise in other laws, the Public Waters Reclamation Act shall be applicable to such
projects as development of industrial complex or preparation of generation plant site involving
reclamation of public waters. |
| ㅇ Therefore, the Public Waters Reclamation Act governs agreement by an entity who has a title to public
waters and reclamation process, etc. |
| □ As reclamation of public waters leads to creation of land and title thereto, it depends on prior loss of public water functionality. |
| ㅇ By definition, "reclamation" in the Public Waters Reclamation Act means putting earth, sand, rock or
other objects manually into area which is submerged or covered by flowing water flowing water to
create land (including reclamation by drainage). |
| □ Activities to which Public Waters Reclamation Act applies mutatis mutandis |
ㅇ Construction of fish farm
ㅇ Installation of shipbuilding facility
ㅇ Construction of tidal energy-utilizing structure
ㅇ Construction of permanent structure that occupies public waters in part |
| C. Comparison between the Two Act and their Relationship |
| □ Each Act provides for different scope of application |
| □ Managing authorities in the Public Waters Management Act include the Minister of Maritimes Affairs & Fisheries, director of regional maritime affairs & fisheries office, city mayor, county governor and urban district head while licensors in the Public Waters Reclamation Act include director of regional maritime affairs & fisheries office, city mayor, province governor, the Minister of Agriculture & Forestry (reclamation of less than 3,000ha is delegated to city mayor or province governor) and director of regional construction office (including the head of Jeju development office). |
| □ Permits pursuant to the Public Waters Management Act endorses sole and exclusive occupation or usage of a specific public water in general while reclamation license in accordance with the Public Waters Reclamation Act grants a right to create land in a specific public water (obtain a title). |
| □ A person may install the same structures as pier or breakwater in accordance with either of the Acts. However, the nature of such structures and management requirements applicable to them are different, depending on their governing laws. |
| ㅇ If the governing law is the Public Waters Management Act, restoration of public water to its original
state is an assumption and the person who installs a structure has a title to such as structure and must
pay occupation/usage charge in relation to the area covered by the structure. |
| ㅇ the governing law is the Public Waters Reclamation Act, public waters are gone when land is created on
it and, within such a land, portion earmarked or required for public purpose is reverted to national or
local government and the licensee obtains a title to the area amounting to the total reclamation cost
and must pay reclamation license fee. |
| □ If a person wishes to obtain occupation/usage permit or reclamation license in each of the Acts respectively, such a person shall obtain agreement by an entity who has a right to the public water in issue and ensure that relevant authorities do not object to such a permit or license. |
| □ If it is inevitable for the sake of public benefit or a person who has obtained occupation/usage permit or reclamation license in each of the Acts respectively fails to fulfill his or her obligations, relevant managing authority or licensor has supervisory rights including the right to revoke relevant permit or license. |
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