Title of New Harbor Case

[20-1(A) KCCR 332, 2006Hun-Ra1, March 27, 2008]

This case is a competence dispute initiated by Gyeongsangnam-Do (province) and Jinhae-Si (city) against the Minister of Maritime Affairs and Fisheries and the Administrator of Busan Regional Maritime Affairs and Fisheries Office concerning the title of new harbor which is being built in BusanMetropolitan City and Gyongsangnam-Do. The Constitutional Court dismissed the case on the ground that the Administrator of Busan Regional Maritime Affairs and Fisheries Office is lack of capacity to be a party in competence dispute case and the title of the new harbor as 'New Harbor' determined by the Minister of Maritime Affairs and Fisheries does not infringe upon the competence of the plaintiffs.

Background of the Case

The government has been under construction of a harbor in the area of Yongwon-Dong, Jinhae-Si, Gyongsangnam-Do and Kaduk-do, Kangseo-Gu, Busan-Si, spending 9,154.2 billion Won from the year of 1995 to 2011 in order to make a hub of logistics in the Northeast Asia in preparation for twenty-first century. Some parts of the harbor was already completed and opened on January 19, 2006.

The newly built harbor (hereinafter the "New Harbor"), as Hub-Port of international container, is expected to have considerable economic ripple effect and employment effect. For this reason, it was anticipated that there would be a dispute between Gyongsangnam-Do ("GSND") and Busan-Si ("Busan") as to demarcation of administrative boundaries in the reclaimed land and the title of the new harbor.

Several times Busan and GSND have sought acompromise on the title of the New Harbor at the conferences hosted by the Ministry of Maritime Affairs and Fisheries since 1997 but in vain. On December 19, 2005, the Minister of Maritime Affairs and Fisheries (hereinafter the "Minister") decided to maintain the title of 'Busan Port', which is a international trading port, and designate 'Busan New Port' as the official title of the New Harbor, which is a part of the harbor zone of the Busan Port (hereinafter the "Decision of Title") after the

deliberation of Central Harbor Policy Deliberation Committee (hereinafter the "Committee") which is under the command of the Minister. According to this Decision, the Administrator of Busan Regional Maritime Affairs and Fisheries Office (hereinafter the "Busan Regional Office") revised Article 2 Item 1 of the Regulations for the Management of the Facilities of Busan Port (Public Notification of the Busan Regional Office, No.2005-146) to provide that "The marine district in the harbor zone of the Busan Port consists of …… the New Harbor." (hereinafter the "Notification").

GSND and Jinhae-Si ("Jinhae") lodged a competence dispute to seek invalidation of the Decision of Title and the Notification on January 13, 2006, claiming that the Decision of Title and the Notification infringed upon their rights of local government. According to the revision of the Government Organization Act on February 29, 2008 as Act No. 8852, the name of the Minister of Maritime Affairs and Fisheries changed to the Ministry of Land, Transport and Maritime Affairs while the name of Busan Regional Office to Busan Regional Maritime Affairs and Port Office (Article 22 Section 15, Addenda Article 6 Section 683). In addition, the competence of the Minister was succeeded to the Minister of Land, Transport and Maritime Affairs (Addenda Article 2 Section 1) while that of the Administrator of Busan Regional Office to the Administrator of Busan Regional Maritime Affairs and Port Office (Addenda Article 3) (hereunder the names of the relevant parties before this revision are used).

Summary of Decision

The Constitutional Court unanimously (with one concurring opinion) dismissed this competence dispute suit filed by GSND and Jinhae against the Minister and the Administrator of Busan Regional Office as to the title of the New Harbor for the following reasons.

1. Capacity for Being a Party and Standing

Respondent, the Minister, is a state agency consisting the administrative branch according to the Constitution and the Government Organization Act and has the authority to administer the

affaires concerning maritime affairs. Furthermore, the Minister may designate and officially notifies the harbor facilities in and outside the harbor zone and have the Committee under his/her control discuss the matters on designation and adjustment of harbor zone. Hence, since the Minister has relevance with the authority to make the Decision of Title, he has the capacity for being a party and standing in this competence dispute case.

On the contrary, the respondent, Administrator of Busan Regional Office, supervises the matters subject to his or her jurisdiction under the command of the Minister and superintends the civil servants under him or her. The Administrator of Busan Regional Office only takes charge of some affairs of the Minister in the region of Busan, but do not have any independent authority over maritime affairs. Besides, the Notification announced under the name of the Administrator of Busan Regional Office is just to officially announce the decisions by the Minister that was made after deliberation of the Committee pursuant to the mandate of Article 71 of the former Harbor Act. Therefore, the Administrator of Busan Regional Office does have neither the capacity for being a party nor standing in this competence dispute case.

2. Existence of Competence to be Infringed Upon

A.Article 11 of Local Autonomy Act prescribes State Affairs that shall not be managed by the local government. The affairs of national-scale or similar to that, including the comprehensive national economic development plan, national rivers, State-owned forests, the comprehensive national land development plan, designated harbors, national expressways, national roads, national parks (Item 4), fall under such category. The reason why the Local Autonomy Act classifies such affairs into State Affairs is that such affairs are not related only to resident's welfare and autonomy in a certain local government but should be dealt with in national or nationwide level. Hence, the maritime affairs on the designated harbor should be administered for the pubic welfare of the whole nation rather than for the interest of a certain local government where the harbor is located.

B.For the reasons above, the maritime affairs on the designated

harbor constitute State Affairs and as long as the State decided the New Harbor to be a subordinate harbor to the designated harbor, the State has the power to decide the title of the harbor zone. Considering that the New Harbor is the mega-scale harbor for national purpose that is being constructed to make a hub of logistics in the Northeast Asia in preparation for twenty first century, the competitive power of the nation, the degree of international recognition and preference of harbor users, the respondent, the Minister, determined to place the New Harbor as a subordinate one to Busan Port, which is the designated harbor, and the official title of the New Harbor to be "Busan New Port, "maintaining the title of "Busan Port" as an international trading port that includes the new harbor on December 19, 2005 after the discussion of the Committee. The Minister had the Administrator of Busan Regional Office officially announce the Decision. In this regard, the plaitiffs do not have the authority to decide the title of the New Harbor. Therefore, the plaintiffs' competence dispute suit is not justiciable because the Decision of Title neither infringed upon nor has manifest danger to infringe upon the competence of the plaintiffs.

C.The plaintiffs allege that their competence has been infringed upon because the jurisdictions of local governments and harbor zone became inconsistent due to the Decision of Title. However, although another local government's title may be used for a harbor zone located in a certain local government, the jurisdictional entity would not change unless there is a statutory revisiont to demarcate the boundaries between the local governments concerned (Article 4 Section 1 of the Local Government Act). Therefore, the plaintiff's allegation has no rational grounds.

3. Concurring Opinion of One Justice

The title of the "New Harbor" in this case is not for a designated harbor or a local harbor with legal basis, but for an internal district of the designated harbor. Hence, the administration body in charge of the maritime affairs of Busan Port may internally and voluntarily determine the title of the "New Harbor" that has been newly

constructed in Busan Port. In this case, the administration body, which is the Minister, determined the title of the New Harbor after the discussion in the Central Harbor Policy Deliberation Committee. Therefore, the Decision of Title is legal and has no problem.

However, since the Decision of Title is merely an internal action of the administrative agency, GSND and Jinhae do not suffer any legal disadvantages from such Decision. In this regard, the Decision of Title would have no direct effect on rights and duties, or legal relations of the plaintiffs, thus does not constitute an administrative measure. In this regard, the subject against which the plaintiffs filed this competence dispute, can not be subject to the competence dispute and thus the plaintiffs' claim is not justiciable.