[항만시설사용료(화물장치료)부과처분취소][공2001.12.1.(143),2472]
Even if the latter part of Article 7(1) of the former Regulations on the Use of Harbor Facilities and the Use Fees of the Harbor Facilities in the International Trade Port (amended by the Notice of the Maritime Port Authority No. 1996-25 on July 4, 1996, which provides that a harbor stevedoring operator may file an application for permission for the use of harbor facilities on behalf of the individual shipper, is still entitled to file an application for permission on behalf of the owner of the cargo (affirmative), and whether the harbor stevedoring operator is liable to pay the fees for the use of harbor facilities on behalf of the owner of the cargo (negative)
Pursuant to the terms and conditions of the loading and unloading contract, a harbor loading and unloading business entity, which is a corporation operating a harbor loading and unloading business with a license for a harbor transport business under the Harbor Transport Business Act, not an imported cargo owner, uses a wharf facility in the course of transporting imported cargo to a facility subject to the collection of a cargo terminal treatment, and once the imported cargo enters a facility subject to the collection of a cargo terminal treatment, it is possible for the owner to use the cargo to take any measures concerning the relevant cargo unless the owner takes such measures. From the past, the harbor loading and unloading business entity cannot take any measures as to the relevant cargo unless the owner takes such measures. Since the harbor loading and unloading business entity receives an application for the permission for the use of the harbor facility on behalf of the owner of the cargo under the Harbor Transport Business Act, as the latter part of Article 7(1) of the Regulations on the Use of Harbor Facilities and the Charges of the relevant cargo on behalf of the owner of the cargo, and thus, it cannot be seen that the request for permission for the use of the harbor facility is not clearly permitted in light of the nature of the above provisions.
Article 27(1) and (2) of the former Harbor Act (amended by Act No. 6254, Jan. 28, 2000); Article 20-2(1) of the Enforcement Decree of the Harbor Act; Articles 7(1) and 18(1) of the Regulations on the Use of Harbor Facilities and the Use Fees of Trade Port Facilities
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)
Dongbu Construction Co., Ltd., Ltd., which is the taking-off of litigation at Dongbu high speed
Busan Regional Maritime Affairs and Fisheries Office
Busan High Court Decision 2000Nu2174 delivered on March 9, 2001
The judgment below is reversed, and the case is remanded to Busan High Court.
The court below acknowledged the fact that the plaintiff was requested to load and unload each of the imported cargo of this case under the Harbor Transport Business Act, and the defendant received from October 4, 1997 to August 30, 198 the application for permission for the use of harbor facilities under Article 7 of the Regulations on the Use of Harbor Facilities and the Use of Harbor Facilities (hereinafter referred to as the "Port Regulations") from the defendant as the plaintiff, and submitted the application to the defendant for permission for the use of harbor facilities to the defendant, and stored the above cargo in the open port yard and warehouse, and the above cargo was stored in the above cargo of this case for the period of time when the owner of each of the above cargo was removed, and the defendant did not receive the permission for the use of harbor facilities from the plaintiff under his own name and received the permission for the use of the harbor facilities under Article 27 (1) of the former Harbor Act (amended by Act No. 1278, Feb. 27, 200).
However, in this case, the Plaintiff is a corporation operating a port cargo transport business with a license for the harbor cargo transport business under the Harbor Transport Business Act, not the owner of imported cargo, and only uses a wharf facility in the course of transporting imported cargo to the facilities subject to the collection of the cargo storage charge, after the import cargo was shipped into the facilities subject to the collection of the cargo storage charge, and the owner of the cargo can carry them out only after the import license is granted. Thus, the Plaintiff cannot take any measures as to the cargo in question unless the owner of the cargo takes such procedures. From the past, the Plaintiff applied for the permission for the use of the facilities subject to the collection of the cargo storage charge on behalf of the owner of the cargo, and even if the owner of the cargo under the Harbor Transport Business Act applies for the permission for the use of the cargo storage charge on behalf of the owner of the cargo, it cannot be seen that the latter part of Article 7(1) of the former Harbor Act, which is the owner of the cargo under the name of the owner of the cargo in question, has no specific provision for the permission for the use of the harbor facility in question.
Nevertheless, the court below committed an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations and by misapprehending the rules of evidence, or by misapprehending the legal principles on the obligation to pay user fees for harbor facilities. Therefore, the grounds of appeal pointing this out are with merit.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.
Justices Zwon (Presiding Justice)