The case holding that in a case where the head of Ulsan Regional Maritime Affairs and Fisheries, who has been entrusted with the authority to establish the "right to manage harbor facilities" under Article 16 of the former Harbor Act, entered into a contract with the Ulsan Regional Maritime Affairs and Fisheries Corporation to lend the right to manage harbor facilities in the Ulsan Port for a certain period of time to the Ulsan Port Corporation, and the Korea National Oil Corporation paid user fees for some waters included in the above water area facilities with consent to use from the Ulsan Port Corporation for the purpose of using crude oil volume (Buy) and the submarine pipeline installation, on the premise that the Korea National Oil Corporation's act of calculating user fees at the time of consent to use and seeking the payment falls under the "disposition imposing user fees" subject to appeal, on the premise that the aforementioned "disposition imposing user fees" constitutes an act of serious and obvious illegality applying the wrong rate for calculating user fees, and sought confirmation of invalidity, in light of all circumstances, since the Ulsan Port Corporation's act of calculating user fees at the time of consent to use and seeking the payment thereof is not unlawful as it becomes a superior public authority.

The Minister of Oceans and Fisheries delegated the authority to establish the “harbor facility management right” under Article 16 of the former Harbor Act (amended by Act No. 14452, Dec. 20, 2016; hereinafter the same) by the Minister of Oceans and Fisheries entered into a contract with the Ulsan Regional Maritime Affairs and Fisheries Office for free lending the right to manage harbor facilities to the Ulsan Port Corporation for a certain period of time. The Korea National Oil Corporation has paid usage fees with the consent of the Ulsan Port Corporation for the use of some waters included in the above waters for the use of crude oil dys and submarine pipelines. The Korea National Oil Corporation paid usage fees with the consent of the Ulsan Port Corporation for the use of crude oil dys and submarine pipelines. The Korea National Oil Corporation has calculated usage fees at the time of the consent to use and sought payment thereof, under the premise that this constitutes “disposition of imposition of usage fees” subject to appeal. The aforementioned “user fee” is alleged to have been serious and clear in calculating the wrong rate of usage fees.

The case holding that the Ulsan Port Corporation should be deemed to have been in the position of a borrower who has received free loans of the right to use harbor facilities from the Minister of Oceans and Fisheries, and the legal relationship established on the basis of the above contract is also a private legal relationship, in light of the fact that the Ulsan Port Corporation received delegation of state-owned property management affairs from the management authority or entrusted state-owned property management by the Minister of Oceans and Fisheries, and there is no ground to deem that the Ulsan Harbor Corporation received the authority from the Minister of Oceans and Fisheries to grant permission for use of harbor facilities. Since Article 17 of the former Harbor Act clearly states that the "right to manage harbor facilities", which is the basis for consent to use, is a private legal right under the private law, and the legal relationship established on the basis of the above contract, is also understood as a private legal relationship, and the legal relationship on the use or lease of harbor facilities, is understood as the "legal relationship on the use or lease of harbor facilities," and thus, the portion of the "right to request the payment of rent from the Korea National Oil Corporation in the position of public authority."

Articles 1, 27, 29, 30 (1) and (3), and 30-2 of the former Port Authority Act (Amended by Act No. 1451, Dec. 20, 2016); Articles 12, 13 (1) and (2) of the former Enforcement Decree of the Port Authority Act (Amended by Presidential Decree No. 28139, Jun. 20, 2017); Articles 2 subparagraph 5 (a) and 16, 17, 20, 30, and 92 of the former Harbor Act; Articles 2 subparagraph 5 (a) of the former Harbor Act (Amended by Act No. 1452, Dec. 20, 2016); Articles 2 subparagraph 5 (a) and 17, 20, 30, and 30-2 of the former Enforcement Decree of the Port Authority Act (Amended by Presidential Decree No. 28139, Jun. 20, 2017); Articles 12 and 27 (2)

Korea National Oil Corporation (Law Firm LLC, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Ulsan Port Corporation (Attorney Han-sik et al., Counsel for the plaintiff-appellant)

September 5, 2019

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of KRW 1,244,58,400 of the usage fee from June 4, 2013 (the address of Ulsan-gun, Ulsan-gun), the area of the branch line 251,432.61 square meters, the period of use from June 1, 2013 to May 31, 2014), and the disposition of imposition of KRW 251,432.61 square meters, the area of the port facilities (the address of Ulsan-gun, Ulsan-gun, the area of the branch line, the area of the use, the period of use from June 1, 2014 to May 31, 2015) that the Defendant imposed on the Plaintiff, is invalid, respectively.

The defendant shall pay to the plaintiff 1,426,713,165 won and 622,294,200 won from June 19, 2013; 5% per annum from June 17, 2014 to the service date of the copy of each complaint of this case; and 15% per annum from the following day to the day of full payment.

1. Basic facts

A. The Plaintiff is a legal entity established pursuant to the Korea National Oil Corporation Act for the purpose of promoting stability in petroleum supply and demand and contributing to the development of the national economy by efficiently conducting the business of developing petroleum resources, stockpiling petroleum, and improving the petroleum distribution structure. The Defendant is a legal entity established pursuant to the Port Authority Act for the purpose of fostering Ulsan Port, which is a national trade port, as a competitive logistics base and contributing to the national economy.

B. On January 2, 2008, the chief of the Ulsan Regional Maritime Affairs and Fisheries (hereinafter “the chief of the Ulsan Regional Maritime Affairs and Fisheries Office”) delegated by the Minister of Oceans and Fisheries changed to the head of the Ulsan Regional Maritime Affairs and Fisheries, and restored to the head of the Ulsan Regional Maritime Maritime Maritime Affairs and Fisheries again on January 6, 2015) concluded a contract with the Defendant for the free loan of 10 to 20% of the former Port Authority (amended by Act No. 1451, Dec. 20, 2016; hereinafter the same shall apply) with a view to enhancing the efficiency in collecting user fees related to the construction, management, and operation of the Ulsan Port Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Affairs).

C. For the purpose of using crude oil in Note 1) (Buoy) and the submarine pipeline installation, the Plaintiff paid each prescribed usage fee with respect to the area of 251,432.61 square meters (hereinafter “instant waters”) located in the Ulsan-gun’s ( Address omitted), Ulsan-gun’s (hereinafter “instant waters”) zone, pursuant to Article 29(1) of the former Port Authority Act, pursuant to Article 29(1) of the former Port Authority Act, with the Defendant’s approval for use twice as follows.

1) On June 4, 2013, the Plaintiff obtained the Defendant’s consent to use the instant water zone at KRW 1,244,58,400 for one year from June 1, 2013 to May 31, 2014 (hereinafter “approval to use the instant water zone”). The Plaintiff paid the Defendant the full amount of the said royalty to the Defendant on June 19, 2013.

2) On June 2, 2014, the Plaintiff obtained the Defendant’s consent to use the instant water zone at KRW 1,608,837,930 for one year from June 1, 2014 to May 31, 2015 (hereinafter “approval to use the instant water zone”). The Plaintiff paid the Defendant the full amount of the said fee to the Defendant on June 17, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 7, Eul evidence 1 through 3, 9 through 11 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. Summary of the defendant's assertion

1) On the premise that the Plaintiff’s act of calculating user fees and seeking the payment thereof at the time of the first and second approval for use in this case constitutes a “disposition for imposition of user fees” subject to appeal, the Plaintiff asserted that the said “disposition for imposition of user fees” constituted a serious and clear error of law applying the wrong rate for calculation of user fees, and sought confirmation of invalidity thereof, and joined the Plaintiff’s claim for return of unjust enrichment for the portion of user fees paid in excess of the fee duly calculated.

2) As follows, the Defendant’s main defense is the Safety Authority. No relevant statute, including the Port Authority, does the State or a local government delegate the administrative affairs of the Ulsan Port Authority, which is the State property, to the Defendant, or does not have a provision to entrust the administrative authority of the State-owned property. The Defendant’s act of seeking the Plaintiff to consent to use the instant waters based on the instant loan agreement with the Defendant upon exercising public authority on the basis of the Defendant’s demand for payment of the usage fees is not an administrative agency’s demand for payment of the usage fees as a party to the relevant private lease agreement, and thus does not constitute “disposition” subject to appeal. Therefore, the part of the instant lawsuit’s “request for confirmation of invalidity of the imposition of usage fees” in the instant lawsuit is inappropriate as not meeting the eligibility for appeal, and the pertinent claim for return of unjust enrichment is unlawful as the part of the claimant’s claim

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) Relevant legal principles

In case where the Korea Airport Corporation subleases administrative property permitted for free use by the Government pursuant to Article 17 of the former Korea Airport Corporation Act (repealed by Article 2 of the Addenda to the Korea Airports Corporation Act, Act No. 6607, Jan. 4, 2002; hereinafter the same shall apply), if the Korea Airport Corporation is subject to public law regulations, such as preparing a plan in advance and submitting it to the Minister of Construction and Transportation and obtaining approval, it does not differ from the ordinary lease between private parties unless the Korea Airport Corporation has delegated the administrative property to the Minister of Construction and Transportation or has been entrusted with the administration of state property (see, e.g., Supreme Court Decision 201Da82514, 82521, Oct. 24, 2003).

The consolidation of related claims in accordance with Articles 38 and 10 of the Administrative Litigation Act requires that the original appeal shall be lawful. Thus, in a case where an appeal litigation is dismissed in an unlawful manner, the relevant joined claims shall also be dismissed as inappropriate (see Supreme Court Decision 2000Du697, Nov. 27, 2001, etc.).

2) Determination

In light of the following circumstances that can be seen by comprehensively taking account of the evidence and the purport of the evidence stated in the above legal principles as well as the evidence Nos. 13 and 14 as a whole and the purport of the pleading, it is reasonable to conclude that the Defendant’s act of calculating user fees at the time of the approval for the first and second use of the instant case does not constitute a “disposition” conducted by the Defendant in a superior position with public authority and the determination of user fees as a party to a lease agreement under the private law, and that the Defendant does not constitute a “disposition.” Ultimately, the part regarding the “request to nullify the imposition of user fees” in the instant lawsuit is inappropriate as it fails to meet the qualification requirements for an appeal litigation, and the part regarding the claimant’s claim for return of unjust enrichment related to the combination of the above claims is unlawful, and thus, the entire lawsuit is unlawful.

A) The key point of whether the Defendant’s approval for the first and second use of the instant water zone was disposed of by the Plaintiff is whether the Defendant was delegated or entrusted with the management of State property by the managing authority of the instant water zone. However, the principle management authority of the water zone facilities of Ulsan Port, a State trade port, belongs to the Minister of Oceans and Fisheries (Article 20 of the former Harbor Act), Article 92 of the former Harbor Act concerning the delegation or entrustment of authority, and Article 91(1)10 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 28138, Jun. 20, 2017; hereinafter the same) provides that “the establishment and registration of the right to manage harbor facilities under Article 16 of the Act, registration and alteration of the right to use harbor facilities,” and Article 17 of the former Enforcement Decree of the Harbor Act provides that “the authority of the chief of a regional maritime affairs and fisheries office to grant permission for the use of harbor facilities, acceptance of a report on the use of harbor facilities, exemption of user fees, etc.” and payment of the charges.

B) Rather, the Defendant entered into the instant free loan agreement with the chief of Ulsan Regional Maritime Affairs and Fisheries Office with the authority to establish the “harbor facility management right” under Article 16 of the former Harbor Act by the Minister of Oceans and Fisheries. However, Article 17 of the former Harbor Act provides that “the right to manage harbor facilities shall be deemed a real right, and the provisions concerning real estate under the Civil Act shall apply mutatis mutandis,” and the above right to manage harbor facilities shall be clearly defined as a right under the private law. Ultimately, it is reasonable that the Defendant is in the position of the borrower (a borrower) who was granted the right to manage harbor facilities (a free loan and its legal nature shall be deemed a loan, a typical contract under the Civil Act) with the chief of Ulsan Regional Maritime Affairs and Fisheries Office, which is the authority to manage the right to manage harbor facilities.”

C) The approval to use the first and second ports of this case is made in the form of the Defendant’s approval to use the Plaintiff’s port facilities. The user fees for the instant zone shall be calculated in accordance with the method of calculating the user fees under the “Rules on the Use, Use, etc. of Harbor Facilities by Ulsan Port Authority”, which is the Defendant’s internal provision. In addition, according to Article 30(6) and (8) of the former Harbor Act, Article 28 of the former Enforcement Decree of the Port Authority Act, Article 30(1) and (3) of the former Port Authority Act, and Article 13(1) and (2) of the former Enforcement Decree of the Port Authority Act (amended by Presidential Decree No. 28139, Jun. 20, 2017; hereinafter the same), the standard of classification and rate of the user fees for port facilities, such as the harbor project, or the “contractor” should be determined and publicly notified by the Minister of Oceans and Fisheries in advance, and the Defendant’s act of seeking the payment of the user fees for national taxes and other charges for arrears.

① However, the right to manage harbor facilities in each of the instant cases is a private right, and the legal relationship formed based on the instant free loan contract is also a private legal relationship. ② Article 30 of the former Harbor Act uses the term “lease contract” for an act to obtain the right to use harbor facilities, and Articles 29 and 30 of the former Port Authority also uses the term “use or lease of harbor facilities.” Article 12 of the former Enforcement Decree of the Port Authority Act uses the term “approval for use from harbor facilities” by using or leasing harbor facilities, and “the acquisition of approval for use from harbor facilities” and “the conclusion of a contract for use or lease,” respectively. In light of the above, it is understood that the legal provisions on the use of harbor facilities in the instant case are composed of “the legal relationship on the use or lease of harbor facilities” under the premise that “the legal relationship on the use or lease of harbor facilities constitutes a private legal relationship under the private law,” ③ Even if the legislative opinion on the compulsory collection of user fees pursuant to Article 30-2 of the former Port Authority Act newly established, the above provision can not be subject to judicial consent.

D) Article 16 of the former Korea Airport Corporation Act provides that a State-owned property may be leased, free of charge, to the Corporation when necessary to efficiently conduct its business, and Article 17(1) of the former Korea Airport Corporation Act provides that a State-owned property may be leased, or sub-leased, to a third party. In addition, when the Corporation intends to “lease, or sub-lease,” it shall prepare a plan in advance and submit it to the Minister of Construction and Transportation (the present Minister of Land, Infrastructure and Transport) for approval (Article 17(2)). The object of collection of usage fees or usage fees collected by the Corporation, the amount of collection, and the collection procedure thereof shall be determined by Ordinance of the Ministry of Construction and Transportation (Article 18(2)) (Article 18(2)). The former Korea Airport Corporation Act’s regulatory contents are identical to the legal regulations and quality on the use or lease of harbor facilities as prescribed by the former Harbor Act and the former Port Authority. However, the former Port Authority established that the State-owned property is a private right under the former Harbor Act or the Port Authority Act.

3. Conclusion

Therefore, since the lawsuit of this case is entirely unlawful, it is decided to dismiss it. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Gangnam-don (Presiding Judge) Lee Jae-soo (Presiding Judge)

Note 1) The section Buy is 'Boy' at the end of our country. The mooring schedule is a facility for mooring vessels to a point other than a wharf, which is installed to fasten the vessel on the upper part of a fixed section. The term "raw milk barge" in this case refers to the mooring schedule installed to ensure that oil can be unloaded and unloaded by mooring vessels on the sea, not a wharf, on the sea where a large crude oil transport vessel difficult to arrive at the wharf.