[2] If a dispute arises as to the period of free use of harbor facilities under Article 19(2) of the former Enforcement Decree of the Harbor Act, the method of dispute (=party suit under public law)

[3] In a case where a local Minister of Maritime Affairs and Fisheries recognizes a period shorter than the period of free use of harbor facilities permitted by the relevant Acts and subordinate statutes, whether there is a need to protect the rights of the contractor (affirmative)

[4] The legal nature of Article 2 (2) of the Rules on the Use of Harbor Facilities concerning the calculation period of the total project cost of the local Minister of Maritime Affairs and Fisheries

[5] The termination date of the construction interest calculation under Article 18 subparagraph 6 of the former Enforcement Decree of the Port Act

[6] Whether Article 17 (3) of the former Harbor Act and Article 18 of the Enforcement Decree of the former Harbor Act include value-added tax on the total project cost (negative)

[2] Under Article 17(3) of the Harbor Act and Article 19(2) of the former Enforcement Decree of the Harbor Act (amended by the Presidential Decree No. 14853, Dec. 29, 1995), the period of free use of harbor facilities shall be determined by the amount of the total project cost. If there is a dispute as to the calculation of the total project cost so that the right to use public goods is unstable due to the lack of the period of free use, the infringement of public rights can be relieved by means of administrative litigation. Since the dispute over the period of free use constitutes a dispute over legal relations under public law, the dispute over the period of free use shall be resolved by party litigation against the State or local government, which is the subject of rights.

[3] According to Article 2 (1), (2), and Article 5 of the Rules on Use of Harbor Facilities, since the period of free use of harbor facilities by a non-management authority is realized as a result of the calculation of total project cost of the local Minister of Maritime Affairs and Fisheries, even though the local Minister of Maritime Affairs and Fisheries does not have a substantial authority to grant a non-management authority the right to free use of harbor facilities or restrict the scope thereof, if the local Minister of Maritime Affairs and Fisheries recognizes the period of free use which is shorter than the period of free use permitted by the relevant Acts and subordinate statutes because it does not comply with the standards for calculation as prescribed by the relevant Acts and subordinate statutes, in calculating total project cost, the non-management authority shall be deemed to have violated the rights under

[4] Article 2 (2) of the Rules on Use of Harbor Facilities provides that "the Minister of Maritime Affairs and Fisheries shall calculate the total project cost within two months after confirmation of completion of the harbor facilities referred to in paragraph (1)." However, this is merely the purport of the Ordinance to present materials and review materials for calculating the total project cost within the possible time after confirmation of completion and to specify the period of free use recognized by the relevant statutes. Thus, it is not deemed unlawful to raise an objection to calculating the total project cost beyond the above period and to demand adjustment thereof.

[5] In calculating interest rates under Article 18 subparagraph 6 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 14853 of Dec. 29, 195), there is a dispute as to whether the above Enforcement Decree should be the date of completion of the harbor works as of the date of completion of construction, and whether the date of completion of construction should be the date of delivery of the certificate of completion of construction. Article 17 (1) of the former Harbor Act (amended by Presidential Decree No. 4925 of Jan. 5, 1995) provides that "the land and harbor facilities constructed or installed by the non-management authority under Article 9 (2) shall be reverted to the State or local government without compensation from the date of completion of construction to the date of completion of construction." Paragraph (3) provides that "the non-management authority shall be entitled to gratuitously use the harbor facilities from the date of completion of construction to the State or local government within the extent of the total project cost, and the period of completion of construction permission and operation of the harbor facilities shall be reverted to the government without compensation."

[6] The scope of total project cost is not logical and inevitable, and it is an issue of legislative policy to be decided in consideration of various circumstances such as the need for the inflow of private capital into harbor facility construction, economic interest of the management agency, non-management agency and other economic entities, and the intensity of compensation for the contribution to the construction, maintenance, and management of harbor facilities. Article 17(3) of the Harbor Act and Article 18 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14853 of Dec. 29, 195) are listed within the scope of total project cost. However, the value-added tax is clear that it is not a survey cost, design cost, net construction cost, compensation cost, and construction interest under Article 18 of the Enforcement Decree of the same Act, and it is hard to interpret that the value-added tax falls under the scope of the total project cost.

2. From March 28, 1994, it is confirmed that the Plaintiff had the right to use the anchoring zone and sea route zone free of charge until the fee exceeds KRW 23,713,130,00 in excess of KRW 27,232,250,991.

3. The plaintiff's remaining claims are dismissed.

4. Ten minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

A. The purpose of the instant lawsuit

The plaintiff was designated as an industrial base development project operator on July 13, 1990 under the Industrial Base Development Promotion Act (amended by Act No. 4216 of Jan. 13, 1990; hereinafter referred to as the "former Industrial Base Development Promotion Act"), and the route of port construction and dredging (hereinafter referred to as the "harbor facilities of this case") were approved as the non-management authority, and the dredging construction of the harbor facilities of this case was carried out. Thus, the plaintiff company's right to use the harbor facilities of this case without compensation to 30 years from 1995 and 18 and 19 of the Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 14853 of Dec. 29, 195; hereinafter referred to as the "former Enforcement Decree of the Harbor Act") is merely a right to use the facilities of this case to 90 won without compensation until 90, 197, 98, 194.

B. Nature of the right of free use of harbor facilities

Article 9 (2) of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995; hereinafter referred to as the "former Harbor Act") provides that "where a person other than the managing authority (hereinafter referred to as a "non-managing authority") intends to implement a harbor project, he shall prepare a plan for the harbor project and obtain permission from the managing authority, as prescribed by the Presidential Decree." Article 17 (1) provides that "the land created or installed by the harbor project of a non-managing authority under Article 9 (2) shall revert to the State or a local government upon completion of the project shall belong to the State or the local government upon completion of the project." Paragraph (3) provides that "The non-managing authority may gratuitously use harbor facilities belonging to the State or the local government pursuant to the provisions of paragraph (1) within the scope of the total project cost." The purport of the provision is that a harbor facility is closely related to the national economy and public interests and that it is difficult to secure the State or a non-managing authority's right to use the harbor project without compensation.

As above, the non-management authority's right of free use of harbor facilities is a right under public law, which is granted as a matter of course in accordance with relevant laws and regulations. Thus, if a non-management authority executes a harbor project with permission for implementation of the harbor project and such facility belongs to the State or a local government, the non-management authority is granted the public right of free use of harbor facilities through such a series of procedures, and such right of free use of public goods constitutes the so-called right of use of public goods

(c) Method of dispute over the dispute over the period of free use of harbor facilities;

As seen earlier, Article 17(3) of the former Harbor Act provides that "the non-management authority may use free of charge harbor facilities belonging to the State or a local government pursuant to paragraph (1) within the scope of total project cost under the conditions as prescribed by the Presidential Decree." Accordingly, Article 19(2) of the former Enforcement Decree of the Harbor Act provides that "the period during which the use of harbor facilities can be made free of charge until the total project cost reaches the total project cost." Thus, the period of free use of harbor facilities shall be determined by the amount of total project cost. If there is a dispute over the calculation of total project cost and the use right of public goods is unstable due to the absence of the determination of the period of free use, the infringement of public rights can be compensated by administrative litigation. Thus, it is reasonable to deem that the dispute over the period of free use constitutes dispute over legal relations under the Public Law, and therefore, it should be resolved by a party litigation against the defendant who is the right holder

2. Determination as to the legitimacy of the instant lawsuit

A. Judgment on the Defendant’s main defense

(1) The defendant's main defense

The defendant asserts that the lawsuit of this case should be dismissed for the following reasons.

(A) The need for the protection of rights is recognized when there is a legal interest in the right, duty, and legal relationship subject to confirmation in a lawsuit for confirmation, and it is the most effective and appropriate means. As asserted in the instant case by the Plaintiff Company, the superior position held by the managing authority of port facilities as the patentee is merely permission for construction work, approval of implementation plan, and confirmation of completion. If the right to use the port facilities held by the managing authority after completion of construction is directly acknowledged by law without disposition by the managing authority, the Administrator of Port and Port Authority does not have any authority to deny or restrict the scope of the right to use the port facilities of this case. Thus, even if the Administrator of Port and Port Authority calculates the period of free use of the Plaintiff Company for the port facilities of this case differently from the Plaintiff Company, it cannot be said that the Plaintiff Company denied or infringed the Plaintiff Company’s rights or legal relation, and it is difficult to deem that there is any legal risk or apprehension that the Plaintiff Company should be protected by a judgment.

(B) Even if there is apprehension or risk of legal status against the Plaintiff company, the Plaintiff company should first use the instant harbor facilities during the period of use calculated by the Administrator of the Port and Port Office, and then the Plaintiff company may dispute the illegality of the disposition of imposition and seek relief for the Plaintiff company through appeal litigation if the infringement of rights is realized by the Administrator of the Port and Port Office due to the lapse of the free use period. However, the instant lawsuit filed on the ground that there is apprehension or risk of the total project cost determination by the Administrator of the Port and Port Office who does not have any legal effect as a simple factual act, does not have a benefit in protecting the rights.

(2) Determination:

(A) Determination on the first argument

As seen earlier, if a non-management authority completes a harbor project with the permission from the managing authority and completed the harbor project, the non-management authority has the right to use the harbor facilities free of charge within the scope of total construction cost under the harbor-related Acts and subordinate statutes. Since the period of free use is within the period recognized under Article 19(2) of the former Enforcement Decree of the Harbor Act, the management authority has no authority to decide whether to grant a non-management authority the right to use the harbor facilities or to determine the scope thereof.

However, according to Gap evidence 2, the Minister of Construction and Transportation approved the implementation plan for the industrial base development project for the route of the port facilities of this case on December 13, 1990, pursuant to the provisions of Article 8 of the former Industrial Base Development Promotion Act, "the matters concerning free use, etc. of water facilities which have been completed due to the execution of the construction work shall be consulted with the head of the port," and Article 2 (1) of the Rules on Use of Harbor Facilities (the amended by Ordinance of the Ministry of Transport and Transportation No. 975 of April 27, 1992; hereinafter referred to as "harbor rules") provides that the non-management authority under the provisions of Article 17 (3) of the Harbor Act intends to use the harbor facilities to be reverted to the State under the provisions of paragraph (1) of the same Article, the Minister shall notify the non-management authority of the expiration of the project plan within the period of free use of the public law and shall not notify the plaintiff's right to use the harbor facilities within the period of free use of the public law."

(B) Judgment on the second argument

In a lawsuit for confirmation, there shall be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation shall be recognized only when the defendant is the most effective and appropriate means to receive a judgment from the defendant in order to eliminate such apprehension and risk, and in this case, the head of the Port and Port Office calculates the total project cost less than the plaintiff's assertion, resulting in unstable and risk in the relationship of rights under the public law of the plaintiff company. Therefore, we examine whether such apprehension and risk exist and whether the lawsuit in this case is valid and appropriate means to eliminate such apprehension and risk.

The facts that the Plaintiff Company did not take such measures as notifying the Plaintiff Company of the expiration of the period of free use of the instant harbor facilities pursuant to Article 5 of the Port Rules, because the fees for free use of the instant harbor facilities are not yet less than KRW 23,713,130,00 of the total project cost claimed by the Defendant until the date of closing of argument can be known in accordance with the purport of oral argument. According to these facts, the Plaintiff Company may exercise the right to free use of the instant harbor facilities without the resistance of the head of the Port Authority during the free use period computed by the head of the Port Authority, and until now, it is difficult to view that there is any apprehension and danger in the Plaintiff Company’s right to use the instant harbor facilities. Meanwhile, since the Plaintiff Company’s right to use the instant harbor facilities does not interfere with the exercise of the right to free use of the instant port facilities until the date of closing of argument, the head of the Port Authority does not have the right to seek any restriction on the Plaintiff Company’s right to use the Plaintiff Company’s current free use of the port facilities by the Plaintiff 1303.

(C) Therefore, the defendant's above main defense is without merit.

B. Determination ex officio (Determination as to whether the part of the lawsuit demanding confirmation of the existence of the right to use free use equivalent to KRW 23,713,130,000 is legitimate)

On the other hand, the confirmation of existence of a right or legal relation becomes only a claim for the extent of dispute, so if the debtor acknowledges that some of the claims in the creditor's claim exists and contests that there is no claim in excess, there is no interest in confirmation, and there is no interest in confirmation as to the part of the claim recognized by the debtor. (See Supreme Court Decision 83Meu37 delivered on June 14, 1983) Accordingly, as to the plaintiff's assertion that the scope of the right to use the free use is up to the amount of KRW 29,970,098,968, the defendant recognized the right to use the free use of the amount of KRW 23,713,130,000 and denied and contests it, the lawsuit against the part of the right to use the portion that is not disputed by the defendant is unlawful, since there is no interest in confirmation as to the part of the right to use the free use of the part that is not disputed by the defendant.

3. Judgment on the merits

A. Facts of recognition

The following facts do not conflict between the parties, or can be acknowledged in full view of the whole purport of the pleadings in the statements in Gap evidence 1-1, 2, 2-2, 3-1 through 3, Gap evidence 4-1 through 4, Gap evidence 4-5, Gap evidence 6-1, 2, Gap evidence 7, Gap evidence 8-1 through 3, Gap evidence 9, 13, 25, 26, Gap evidence 27-20, 28, and 29.

(1) On April 27, 1990, the Plaintiff Company filed an application with the Minister of Construction and Transportation for designation of the operator of the industrial base development project for the dredging project of the instant harbor facilities under Article 7(2) of the former Industrial Base Development Promotion Act, and Article 5 of the Enforcement Decree of the same Act, and obtained the designation of the operator from the Minister of Construction and Transportation on July 13 of the same year, the project implementation period on December 13 of the same year shall be from November 1, 1990 to December 192, and the project contents shall be from the date of the implementation period from the date of December 13, 1990 to the date of December 25, 192; the project contents shall be from the date of the construction of the current sea route and the 18 to 18.5 meters in the depth of the current sea route and the area of the instant dredging project with the installation of the incidental harbor control facilities at the rate of 19 to 200 meters.

(2) On November 23, 1992, the Plaintiff Company completed the dredging project portion of the instant harbor project and filed an application for permission for use before confirmation of completion with the Administrator of the Port and Port Office, and obtained permission for use of the instant harbor facilities prior to confirmation of completion on condition that the user fee for the instant harbor facilities during the period of use should be paid for a fee.

(3) On February 6, 1993, the Plaintiff Company filed an application for the authorization of completion of the instant harbor project with the Administrator of the Port and Port Office, but the Administrator of the Port and Port Office ordered the Plaintiff Company to supplement the control facilities on the ground that the port control facilities installed by the Plaintiff caused interference with nearby naval Rads, and returned all documents for completion on March 19 of the same year. On March 3 of the same year, the Plaintiff Company requested the Plaintiff Company to submit data for calculation of construction funds, for the purpose of determining the total project cost of State-owned assets related to the application for completion inspection of the instant harbor project on the 3th of the same month.

(4) On March 31, 31 of the same year, the Plaintiff Company requested the head of the Port and Port Office to approve the completion of the construction of the area of the sea route and the area of the dredging construction except for the harbor control facilities among the instant harbor works. However, the head of the Port and Port Office rejected the Plaintiff Company’s request for the completion of the construction of the separation and completion on April 8 of the same year on the ground that it is difficult to complete the separation and completion as part of the navigation route and the dredging construction.

(5) As a result of continuing consultation with the head of the Port and Port Office of the Republic of Korea, the neighboring naval port commander, and the port control facilities, the Plaintiff Company agreed to set up one additional time prior to radars (P. 16"P. 1 and auxiliary devices) to vest in the Navy as a supplementary measure for interference. On December 22 of the same year, the Plaintiff Company filed an application for revision of the implementation plan for harbor works with the head of the Port and Port Office by adding the aforementioned radars time to the project details and changing the project period to January 1, 1994. The head of the Port and Port Office approved it on January 24, 1994.

(6) On January 31, 1994, the Plaintiff Company completed all construction following the modification of the implementation plan for the harbor project, and filed an application for the approval of completion of the construction work for the total construction period of KRW 21,201,359,831 [21,47,40,787 + 21,143,919,044 + 73,001,757 (design Service Fee of KRW 48,00,000 + 25,000,000 + 1,757,0000 + 36,000,000 won for the attorney’s fee of KRW 5,94,95,853, value-added tax 2,276,937,439,94, 194, 396, 194, 196, 194, 396, 294, 2946, 1946

(7) Accordingly, on March 18, 1994, the Plaintiff Company filed an application for approval of free use of the instant harbor facilities with the total project cost of KRW 29,96,238,000, and with the period of free use within twenty years until the amount reaches the total project cost. On March 25, 1994, the Administrator of the Port and Port Administration set the period of free use commencement as 00:00 on March 28, 1994 and approved the Plaintiff Company’s free use of the instant harbor facilities.

(8) On April 16, 1994, the Administrator of the Port and Port Administration requested correction since there was an error of law in calculating the total project cost of the instant harbor project by the Board of Audit and Inspection, and on December 27, 1994, the Plaintiff Company delayed the completion of construction due to the failure of the Plaintiff Company to smoothly perform the construction work within the original project period, the construction interest shall be calculated up to November 23, 1992 with the permission for use before the completion of the construction work. Value-added tax shall be excluded from the total project cost item, and the Plaintiff Company's objection is not appropriate. On July 16, 1994, the Administrator recognized the Plaintiff Company's 29,96,238,000 won, which is part of the amount of the Plaintiff's application for free use approval, and excluded from the total project cost of KRW 23,713,130,000 for the construction cost of the Plaintiff Company and KRW 194,200 for the construction cost of the Plaintiff and KRW 194,20000.5.0

B. The allegations and determination by the parties

(1) Determination on the legality of the total cost of assets

(A) The party's assertion

The plaintiff completed construction works suitable for the contents of the plan of this case after the lapse of January 31, 1994, with the total project cost of KRW 29,96,238,184 as a result of the alteration of the plan of this case, the Administrator of the Port Administration issued an application for the authorization of completion of construction at 29,96,238,184 won, and issued the confirmation of construction completion, and without any condition, stated 29,96,96,238,184 won in the application for the authorization of completion including the total project cost applied by the plaintiff company at 29,96,96,238,184, and it is not possible for the plaintiff company to unilaterally calculate the total project cost of this case as the total project cost of 29,96,238,00 won. Thus, the head of the Port Administration of this case's 29,000 won to request the non-management authority to confirm the construction of this case's harbor facility within 97 months after the completion of construction.

(b) the sales board;

The plaintiff company completed all construction works due to the change in the implementation plan of the harbor project, and applied for the authorization of the completion of the harbor project. The Administrator of the Port Administration, from November 1, 1990 to January 31, 194, stated that the construction period of the harbor is within 29,96,238,184 won, and issued the confirmation of the completion of construction of the harbor project of this case within 29,96,96,230,000 won to the non-management authority for free use of the harbor facility of this case (the plaintiff company is not obligated to use the facility of this case as a result of the non-management authority's determination of the total project cost within 10,00,000 won for free use of the harbor facility of this case. The plaintiff company's application for the confirmation of the completion of construction within 20,000,000 won for free use of the harbor facility of this case is no more than 30,000,000 won.

Therefore, the defendant's argument that the calculation of total project cost is discretionary act by the head of the port and port office cannot be accepted. However, as alleged by the plaintiff, the head of the port and port office may not demand the plaintiff to submit materials again to the plaintiff after the lapse of the period prescribed by the port rules for the calculation of total project cost, and the mediation is not allowed in itself because

(2) Claim as to the computation of interest during construction and determination

(A) Provisions of the statute

Article 18 of the former Enforcement Decree of the Harbor Act provides that "the total project cost under the provisions of paragraphs (2) and (3) of Article 17 of the Act shall be the amount calculated by adding up all the expenses calculated according to the standards falling under each of the following subparagraphs in connection with the relevant harbor project on the basis of the date of confirmation of completion of the relevant harbor project," and stipulates that "the total project cost under the provisions of subparagraphs 1, 2, design cost of subparagraph 3, net construction cost of subparagraph 4, compensation cost of subparagraph 5, incidental cost of subparagraph 6, and interest rate of subparagraph 6 shall be the interest rate of construction on the project cost of subparagraphs 1 through 5 (the interest rate shall be the interest rate of loans designated by the management agency from among the interest rates of loans applied by financial institutions under the Banking Act)," and therefore, in calculating the total project cost, the interest rate of construction shall be included as a matter of course in the calculation of the total project

(B) The party's assertion

The plaintiff asserts that interest during construction should be included in the total project cost until January 31, 1994, the date of completion of the construction work, the date of completion of the construction work. The defendant asserts that the period of construction should be extended to the extent that there is no reason to assume the plaintiff company's liability as to the extension of the construction period to consider the date of completion of the construction as the date of completion of the construction work. In this case, the chief of the Port Administration notifies the plaintiff company that the port control facilities installed by the plaintiff company from the nearby naval military unit cause interference with the naval rasur network around September 16, 192, and he notified the plaintiff company of such fact and ordered the plaintiff company to establish complementary measures due to interference with the construction, but the construction period should be extended to the wind that the plaintiff company failed to prepare the complete supplementary measures due to interference. The main part of the dredging construction work of this case is merely 5% of the entire construction work, and most of the construction work of this case should have already been used by the plaintiff company from September 13, 1992.

(C) the board:

(1) Facts recognized.

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings in the statements in Gap's 2, 11, 12, 14 through 16, 18, 22 through 24, Gap's evidence No. 27-28, 29, 36 through 38, 40 through 42, 45, 46, 49 through 51:

On December 13, 1990, the Minister of Construction and Transportation approved the implementation plan for the port navigation route and the port dredging construction in accordance with the provisions of Article 8 of the former Industrial Base Development Promotion Act to the Plaintiff Company on December 13, 199, and subparagraph 8 (c) of Article 8 of the same Act stipulates that "the matters concerning the installation of facilities necessary for port operation, such as the navigation schedule and port control facilities, during the project plan, shall be consulted with the head of the port and port office prior to the construction.

(2) On April 24, 191, the Administrator of the Maritime Affairs and Port Office prepared and sent to the Plaintiff Company a draft of the standards for installation of the air-going port control radar that specified the necessity for installation of the radar for control of the Plaintiff Company, the current status and problems in the port, the status and scope of control of the radar installation, the performance standards of the radar, the selection of radar equipment, the installation proposal of the radar and site for control, and the conditions following the radar installation. On July 191, 191, the Plaintiff Company prepared a draft of the specifications for purchase of the air-going port control equipment, stating the specific performance and quantity of the control equipment to be purchased in accordance with the above installation standards, and the head of the Pos and Port Office requested four companies, including the Pos Engineering Co., Ltd., the head of the Pos and Port Office, along with the purchase specifications.

On October 18, 191, the head of the Posi Port Office held a technical review meeting to install the port port control facilities by having the chairperson, the members of the Posi Port Office, the members of the Posito Kim Byung-si, the professors of the Korea Marine University, the pilot of the Posito Association of the Posito, and the plaintiff's director Kim Jong-dong attend the port port port control facilities at the port port port port port port port port port port port port port port port port port port port office, and the site transmission method takes the method by mother-m, and he decided to select the class as the NATRCONTRAL product, and ordered the plaintiff company to notify the fact and withdraw all all the measures so that it can be installed as the optimal control radar.

Accordingly, on January 22, 192, the Plaintiff Company prepared a professional engineer report on the contract for the harbor control facilities, and sent it to the Administrator of the Port and Port Office on January 22, 1992 with a view to determining the specifications, supply scope, etc. of the harbor control facilities according to the above conference, and notified the results of the examination. On August 20 of the same year, the Plaintiff Company agreed on August 14 of the same year to install a schedule for the promotion of construction in accordance with the request of the Administrator of the Port and Port Office to review the installation of the harbor control facilities, and on September 30 of the same year, from August 14 of the same year to September 31 of the same year; the starting and performance guarantee test from January 31 of the same year to September 31 of the same year; the completion of the permission for radio station from the 20th of the same month to the Administrator of the Port and Port Office by submitting a supplementary drawing of the Supplier and the related field performance test report, and requested the Administrator of the Port and Port Administration not cooperate in the completion of construction work.

On October 2, 1992, the head of the Gu and the head of the Si/Gun/Gu notified the plaintiff company that the site site installed by the plaintiff company from the nearby naval military unit will be located in the adjacent naval unit, adjacent distance and output, and that there is possibility of interference as frequency. On October 2, 1992, he notified the plaintiff company of the fact. On November 2, 1992, he notified the plaintiff company of the fact that there is no interference by installing the radar antenna, etc. at the request of the military unit, and notified the plaintiff company of the plan to supplement the plan if there is no interference. However, on the other hand, on the 12th of the same month, the head of the Si/Gun/Gu notified the plaintiff company of the plan to supplement the plan, and notified the plaintiff company of the plan to supplement the plan, and on the 12th of the same month, the plaintiff company notified the plaintiff company of the fact that there is no interference.

㉳ 원고 회사는 항만관제설비의 설치공사와 관련하여 담당과장 김택동으로 하여금 포항항만청 해무과장, 관제실장, 주식회사 장산엔지니어링 대표이사 김홍곤과 함께 수차례에 걸쳐서 공사진행, 무선국 가허가 및 시운전 등 제반 업무를 협의하여 처리하게 하였는데, 포항항만청장은 1992. 12. 9. 해군부대 관계자와 위 김택동 등이 참석한 가운데 해군 레이더와의 간섭현상을 시험한 결과 간섭현상이 나타나지 아니하므로, 같은 달 10. 원고 회사에게 시운전 결과 해군부대의 레이더 화면상에 어떠한 간섭도 발견할 수 없으며 해군측에서 가 끔 제밍현상이 발생한다고 하나 이 현상은 포항 신항을 입·출항하는 모든 선박의 레이더 운영시에도 나타나는 현상으로서 일반적인 현상이며 해군 레이더의 운영에 포항항만청장의 레이더가 간섭현상을 주지 않는 것으로 확인되었다는 의견을 통보하였다.

㉴ 그러나 그 후에도 해군부대는 간섭현상이 계속되고 있다고 주장하므로 1993. 2. 9. 경북체신청에게 간섭현상 시험을 의뢰하였으나 간헐적인 간섭현상이 일어나지만 정확한 판단을 할 수 없고 중앙전파관리소 부산분소에 의뢰하는 것이 좋겠다는 의견을 듣고 뚜렷한 대책을 세우지 못하고 있던 중, 원고 회사는 같은 해 4. 22. 포항항만청장에게 항만관제용 12″레이더와 동일한 기종을 해군부대에 신설하거나 해군 보유 16″레이더와 유사한 기종을 해군부대에 신설하는 방안을 대안으로 제시하며 해군부대와 상의하여 그 결과를 통보하여 달라고 요청하였고, 이에 따라 포항항만청장은 같은 달 26., 같은 해 6. 10., 같은 해 7. 26., 같은 해 8. 27. 등 수차례에 걸쳐서 해군부대에게 그와 같은 대안을 제시하며 회신을 촉구하였으나 해군부대에서 아무런 응답을 하지 않고 있다가 같은 해 11.경 포항항만청장과 해군부대 사이에 포항항만청장이 해군부대에 레이더 전시기(16″P. P. I. 1대 및 부속장치) 1대를 추가로 설치하는 것을 내용으로 하는 합의가 이루어져 원고 회사는 그 합의내용에 따른 공사를 마치게 되었다.

(2) Determination as to whether delay in the completion of control facilities falls under the grounds attributable to the plaintiff.

Unlike the current Enforcement Decree, Article 18 subparagraph 6 of the former Enforcement Decree of the Harbor Act provides that construction interest shall be included in the scope of total project cost on the basis of the date of confirmation of completion of construction works, and it does not separately stipulate whether the extended construction interest shall be included in the scope of total project cost if the project period is extended due to a non-management authority's failure to undergo confirmation of completion of construction at the time specified in the implementation plan due to the project implementer's gross negligence. However, the interest loss on construction funds under the implementation plan shall be included in the total project cost if the construction project is extended due to a non-management authority's failure to undergo confirmation of completion at the time specified in the implementation plan.

In this case, even if the harbor control facilities are not an essential element for the installation and maintenance of the harbor, vessels using the harbor frequently enter and depart from the port, and the Minister of Construction and Transportation has increased the necessity for automation of the harbor control facilities due to frequent accidents, and on December 13, 190, the company did not prepare an alternative plan for the construction of the plaintiff's port control facilities for the purpose of consultation with the Administrator of the Maritime Affairs and Port Office prior to the construction, and the company did not have a responsibility for the delay of the whole of the harbor facilities of this case. The company did not prepare an alternative plan for the construction of the plaintiff's port control facilities to the Administrator of the 2nd Port Administration for the reason that it did not request the plaintiff's construction of the alternative plan for the construction of the plaintiff's new port control facilities. The company did not request the plaintiff's construction of the alternative plan for the construction of the plaintiff's new port control facilities to the Administrator of the 4th Port Administration, and it did not request the plaintiff's replacement of the alternative plan for the construction of the plaintiff's new port control facilities.

(3) Calculation of interest during construction.

The fact that the instant harbor project was implemented by using construction funds corresponding thereto on the date of accounting, such as the statement of the attached construction interest statement (the attorney fee, trade association fee, and each construction interest related thereto, which was included by the Plaintiff Company at the time of applying for permission for free use), and the fact that the loan interest rate designated by the management agency is 13.95% per annum from among the loan interest rates applied by financial institutions under the Banking Act does not conflict between the parties.

However, there is a dispute as to which date of completion should be the date of completion of a harbor project, and whether it should be the date of delivery of the certificate of completion completion. Article 17(1) of the former Harbor Act provides that “The land and harbor facilities created or installed by a non-management authority under Article 9(2) shall revert to the State or a local government at the same time as completion of construction,” Paragraph (3) of the same Article provides that “the non-management authority may gratuitously use the harbor facilities reverted to the State or a local government under paragraph (1) within the scope of total project cost as prescribed by the Presidential Decree,” and Article 27(1) of the former Enforcement Decree of the Harbor Act provides that “the date of completion of a harbor project shall be the date of completion completion shall be the date of completion of the construction project (No. 192-27 of May 26, 1992). The project operator shall be deemed to have the right to use the harbor facilities free of charge from the date of completion completion to the State or the local government without consideration.”

Although the defendant asserts that the provisional use permit prior to completion should be the termination date of construction, it is reasonable to consider that the terms of temporary use permit prior to completion should be the consideration for the use fee of the plaintiff company. However, as seen earlier, the plaintiff company already implemented the harbor works to the extent that the provisional use permit prior to completion date is possible, and the contents of the harbor works of this case are the main part of the dredging and the harbor facilities belong to the State or local governments from the original point of view, it cannot be considered that the harbor facilities after completion of the harbor works will belong to the State or local governments. If the harbor control facilities are excluded, it cannot be considered that the harbor facilities will belong to the State or local governments after completion of the harbor works. Since the defendant collected the user fee without allowing it, it is reasonable to recognize the construction interest during the period of collecting the user fee and to include it in the scope of the free use period of the plaintiff company. Therefore, the above argument is without merit.

If construction interest is calculated by taking the completion date of calculating construction interest as of January 31, 1994, the total amount of KRW 5,983,936,287 is as shown in the attached Table.

(3) Determination as to whether value-added tax is included in total project cost

(A) The plaintiff's assertion

The plaintiff is the person liable to pay value-added tax, but the person who is the supplier of goods or services is obliged to collect the amount equivalent to the value-added tax from the person who is supplied with the goods or services. Therefore, in the case of the harbor project of this case, if the construction cost is paid from the head of the port and harbor office after completion of the construction work, the plaintiff company naturally collects and pays the amount equivalent to the value-added tax from the head of the port and harbor office. In the case of the harbor project by the non-management agency, the actual result of the harbor project is the same as the construction work performed by the non-management agency, while the non-management agency's default of the harbor project brings about the same result as the construction work performed by the non-management agency, it is against equity that no value-added tax can be collected from the management agency just because the non-management agency uses the harbor facility free of charge until the amount reaches the construction cost, and thus it is reasonable to include the amount equivalent to the value-added tax in the amount equivalent to the value-added tax.

(B) Relevant statutes

Article 18 of the former Enforcement Decree of the Harbor Act stipulates that the scope of total project cost includes survey expenses, design expenses of subparagraph 1, subparagraph 2, net construction expenses of subparagraph 3, compensation expenses of subparagraph 4, incidental expenses of subparagraph 5, and interest for construction. Article 18 of the former Enforcement Decree of the Harbor Act stipulates that “The incidental expenses of subparagraph 5 refers to all expenses incurred in performing the conditions of permission for execution of harbor works, such as general management expenses, environmental impact assessment expenses, construction supervision expenses, which are calculated by the rate of general management expenses according to the criteria for determination

(C) the board:

In the instant case where a non-management authority is designated as an industrial base development business entity according to its business needs, which implements harbor works, and is in arrears with the payment of the right to use the harbor works to reach the total project cost prescribed by the related Acts and subordinate statutes, instead of being granted the right to use the land for free after confirmation of completion, the Plaintiff company’s harbor works can be subject to the Value-Added Tax Act inasmuch as the non-management authority’s economic and substantial payment relationship exists between the acquisition of the right to use the harbor works and the supply of the services such as contribution delinquency, and the act of delinquency in payment is regarded as the supply of services subject to the Value-Added Tax Act. Thus, the Plaintiff company may collect value-added taxes from the head of the port state harbor office of the person who received the services. However, it is difficult to collect value-added taxes in reality as the Plaintiff company substituted the right to use the harbor facilities without receiving the value-added tax from the person who received the services, and accordingly,

However, the scope of the total project cost is not logical and inevitable, and it is an issue of legislative policy to be decided in consideration of various circumstances such as the need for the inflow of private capital into harbor facilities, economic interest of the management agency, non-management agency and other economic entities, and the intensity of compensation for the contribution to the construction, maintenance, and management of harbor facilities. Article 17 (3) of the former Harbor Act provides that "the non-management agency may gratuitously use the harbor facilities reverted to the State or a local government under the provisions of paragraph (1) within the scope of the total project cost as prescribed by the Presidential Decree." As mentioned above in Article 18 of the Enforcement Decree of the same Act, it is clear that the value-added tax at issue is not a survey cost, design cost, net construction cost, compensation cost, and construction contractor under the provisions of Article 18 of the Enforcement Decree of the same Act. It is difficult to interpret that it constitutes the permission for execution of construction work under the provisions of subparagraph 5 of the same Article.

Therefore, the plaintiff's assertion that the period of free use should be determined including value-added tax within the total project cost is without merit.

(4) The Plaintiff’s free use period for the instant harbor facilities

The total project cost recognized by the relevant Acts and subordinate statutes with respect to the instant harbor project is KRW 27,232,250,99,991,91, which is the sum total of the dredging construction cost stated in the separate sheet and construction cost, plus the total of KRW 20,257,74,54, and the total of KRW 5,799,299,294,720, and construction interest thereon, and KRW 184,641,567, and construction interest thereon, and KRW 27,232,250,991. As such, the Plaintiff Company has the right to use the said anchoring zone and sea zone free of charge for 20 years from March 28, 1994, which was determined by the Administrator of the Port and Port Office as the period of free use.

4. Conclusion

Therefore, during the period from March 28, 1994 to twenty (20) years from the lawsuit of this case, the part of the lawsuit seeking confirmation that the Plaintiff has the right to use the anchoring zone and sea route zone free of charge as stated in the separate sheet is unlawful, and thus, it is dismissed. From March 28, 1994 to the point of twenty (23,713,130,250,000 won, the fee for the above anchoring zone and sea route zone exceeds twenty (23,713,713,130,000 won, and is entitled to use the above anchoring zone and sea route zone free of charge, so the Plaintiff's claim is accepted within the scope of the above recognition, and the remainder of the claim is dismissed as it is without any justifiable reason (attached Form omitted). It is so decided as per Disposition.

Judges Hwang Young-young (Presiding Judge) and Lee Do-young