(영문) 울산지방법원 2015.1.15.선고 2014구합1646 판결

It is confirmed that the plaintiff has the right to handle wood and liquid cargo other than pulp, shipbuilding equipment, vessel block, and miscellaneous in the line No. 9 of Ulsan New Port.

Reasons

1. Details of the disposition;

A. On December 27, 2005, the head of the Ulsan-do Maritime Affairs and Port Office made a public announcement of the selection of the non-management authority of the project of the 'Yansan-gun, Ulsan-si Yansan-si Yansan-si's Egrari Port (1-2) construction project of the south Port Area (1-2), and Tae Young-gu Co., Ltd. (hereinafter referred to as the 'Plaintiff') constitutes a consortium with the East Pulp Co., Ltd., Ltd., the 'Yan-si Yan-si Yan-gun' (hereinafter referred to as the 'Plaintiff's name') together with the Sejong Pulp Co., Ltd., the 'Yan Pulp Co., Ltd., Ltd., the name of the 'Yan-si Yan-si Yan-si 2000 U.S. 200 U.S. 200. 3).

B. On June 27, 2006, the Administrator of the Ulsan-si Maritime Affairs and Port Office granted permission to implement harbor works to the non-managing authority of the instant wharf, and the details are as follows.

A person shall be appointed.

C. On August 21, 2007, the head of Ulsan-do Maritime Affairs and Port Office notified the plaintiff et al. of the purport that "to request the plaintiff et al. to present his opinion on the scope of the State's attribution on the wharf of this case." On the same day, the plaintiff et al. sent a reply to the head of Ulsan-do Maritime Affairs and Port Office to the purport that "the entire area of the landing wall and site belongs to the State: the entire area of the landing wall and site: the entire area of the area: the state's reversion, the area of the water facilities (sea route, the length of the vessel, the site, etc.)." On December 27, 2007, the head of Ulsan-do Maritime Affairs and Port Office changed the plaintiff et al. to the "State, etc.

D. On June 26, 2008, the Plaintiff filed an application with the Administrator of the Ulsan-do Maritime Port Office for the authorization of the implementation plan for the harbor project with the content of "timber and miscellaneous timber and the purpose of the use of the instant wharf." On September 3, 2008, the Administrator of the Ulsan-do Maritime Port Office approved the application for the authorization of the implementation plan for the harbor project to the Administrator of the Ulsan-do Maritime Port Office on several occasions, and the Plaintiff filed an application for the authorization of the implementation plan for the harbor project to the Administrator of the Ulsan-do Maritime Port Office on several occasions, and the head of the Ulsan-do Maritime Port Office submitted the project plan to the Administrator of the Ulsan-do Maritime Port Office to the effect that "the Plaintiff will handle any cargo other than wood" or the operation plan for the wharf. The Administrator of the Ulsan-do Maritime Port Office did not indicate the refusal of such project plan or the operation plan for the wharf.

E. On May 29, 2009, the Plaintiff et al. started the instant wharf construction and completed the said construction at the end of January 4, 2012, after obtaining confirmation of suitability for harbor facilities, the Plaintiff et al. reported the purpose of use to the head of the Ulsan-si Maritime Port Office prior to the completion of the said construction to "explosive into and out for shipping blocks for vessels" and "explosive from the surrounding site," and the head of the Ulsan-si Maritime Port Authority submitted the terms and conditions of use to the head of the Ulsan-si Maritime Port Authority prior to the completion of the construction to "explosive into and out from the surrounding site," and reported the completion of the construction to the head of the Ulsan-si Maritime Port Office on October 13, 2010 and December 16, 2010.

F. On the other hand, on July 3, 2012, the Ulsan Coast Guard requested the Board of Audit and Inspection to conduct a national audit on the current status and operation of the wharf of this case, and on March 29, 2013, the Board of Audit and Inspection conducted an audit and inspection, and on March 29, 2013, it is improper to change the wharf of this case to the State for the plaintiff et al. to deal with other cargo, such as liquid, etc. except for timber, without modifying the basic harbor plan designated as a wood wharf (hereinafter referred to as "inappropriate matters pointed out in the decision on reversion of state expenses") and ② it is improper for the plaintiff et al. to accept the report without any review from the Administrator of the Ulsan Regional Port Authority to handle the vessel block in the wharf of this case (hereinafter referred to as "the improper matters pointed out prior to completion of construction") and ③ The head of the Ulsan Coast Coast Coast Port Authority requested the State's non-management authority to modify the basic harbor plan in question (hereinafter referred to as the "State's non-management authority's inspection of port work").

G. On April 9, 2013, the head of the Ulsan Regional Maritime Affairs and Port Office notified the following (hereinafter referred to as the "Notification of the audit results of this case") to the title "the result of the audit by the Board of Audit and Inspection on the wharf of this case" (hereinafter referred to as "the audit results of this case").

1.The Board of Audit and Inspection has notified from the Board of Audit and Inspection of the following points:

A. Although the wharf of this case must thoroughly examine whether the purpose of the wharf is not to modify the basic harbor plan designated as a timber wharf or not to modify the national non-owned wharfs, the relevant affairs should not be thoroughly examined. However, it should be formed as a 0-public wharf so that many shippers can use the timber-only wharfs. It would not change the entire tin to the State unreverting of the project to the operator who will handle other cargo, such as a wood-only liquid, without modifying the basic harbor plan designated as a timber wharf. In addition, when the basic harbor plan of this case designated as a timber wharf receives the "report of pre-use" for shipping of steel products instead of timber, the basic harbor plan and the harbor construction permission, and the relevant affairs should not be affected by the handling of the timber-based block in the past on two occasions, and it would be possible for the operator to report the use of the timber-based block in the past on 196% of the total number of timber-only ports (the 960% of the total number of timber-only ports).

H. On July 8, 2013, the Plaintiff filed an appeal seeking revocation of the instant notice of audit results with the Ulsan District Court 2013Guhap 1328 against the head of the Ulsan District Maritime Port Office.

[Ground for recognition] The facts without dispute, Gap's entries in Gap's 2,3,5-8,12,13,14,17, 18-21, 24-26, 28, Eul's evidence Nos. 1 through 5 (including the number of branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

As the wharf of this case is non-reverted wharf, there is no legal binding force of the basic harbor plan, and there is no other explicit harbor statute that limits the handling cargo of non-reverted wharfs, and the head of the Ulsan-si Port Office has expressed public opinion that "it is possible to deal with cargo other than wood" before the notice of the audit results of this case is given trust to the plaintiff et al., and thus, the plaintiff et al. has the right to deal with timber and pulp total liquid cargo, shipbuilding equipment, vessel block and miscellaneousization at the wharf of this case. However, the head of the Ulsan-si Port Office notified the audit results of this case that the plaintiff et al. requires the plaintiff et al. to restrict the handling of cargo at the wharf of this case. The above notice is invalid by failing to "public notice" under Article 71 (3) of the Harbor Act, and there is a need or interest to seek confirmation of the right rights against the defendant who is the subject of ownership by the lawsuit of this case in order to eliminate significant anxiety or risk in the public law of the plaintiff.

3. Determination as to the defendant's defense prior to the merits

A. Defenses before the merits

The plaintiff has already filed a lawsuit seeking revocation of a cargo-handling disposition, and the lawsuit is in progress. The lawsuit of this case cannot be the most effective and appropriate means to eliminate risks existing in the plaintiff's rights or legal status. Therefore, there is no legal interest.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

1) The Administrative Litigation Act does not provide for the benefit of a lawsuit against a party suit under public law. As such, the Civil Procedure Act shall apply mutatis mutandis to the benefit of a party suit (Article 8(2) of the Administrative Litigation Act). Therefore, in cases of a party suit seeking confirmation of legal relations under public law, unlike a litigation seeking confirmation of legal relations under public law, the benefit of confirmation is required. Furthermore, the benefit of confirmation is recognized only when it is the most effective and appropriate means to obtain a confirmation judgment against the Defendant to eliminate the Plaintiff’s rights or legal status, and there is apprehension and risk that the benefit of confirmation exists in the Plaintiff’s rights or legal status, and to eliminate such apprehension and risk (see Supreme Court Decision 2012Da67399, Feb. 15

2) Meanwhile, an administrative disposition, which is the object of an administrative disposition, shall be in an external form as an administrative disposition. Whether there is an external form of an administrative disposition, can not be determined abstractly and generally, and whether an administrative disposition meets the requirements of establishment or validity in its subject, content, form, and procedure, whether the counterpart of the act is aware of it as an administrative disposition, whether there is disadvantage or apprehension to the other party due to the act, and the attitude of the administrative agency concerned, etc. should be determined by comprehensively assessing the above facts (Supreme Court Decision 93Nu12619 delivered on December 10, 193). The following circumstances, which can be known according to the above facts, i.e., the plaintiff et al. will handle cargo, other than the cargo of this case, to the head of the Ulsan Regional Maritime Affairs and Port Office after the execution of the harbor work, and the head of the Ulsan Regional Maritime Affairs and Port Office has no particular opinion about it. Rather, the head of the Ulsan Regional Maritime Affairs and Port Office may notify the plaintiff et al. of the contents of this case.

Unlike the "matters to be stated", Article 98 subparag. 4, Article 71(1) and Article 92 of the Harbor Act provides that the Plaintiff shall be punished by imprisonment for not more than one year, or by a fine not exceeding 10 million won, if the Plaintiff violated the suspension of construction, alteration, relocation, removal, restoration, or suspension of use of facilities and equipment, or other necessary dispositions or measures, such as the suspension of construction, reconstruction, alteration, removal, restoration of facilities and articles, suspension of use of facilities and equipment, or orders to take other necessary measures, etc. In addition, the notice of audit results of this case can be applied to the "other necessary dispositions or measures" of the administrator of a regional maritime affairs and port office under Article 71(1) of the Harbor Act, and the violation of penal provisions may be applied to the Plaintiff. The Plaintiff, upon the notice of the result of this case, appears to be difficult to handle freight other than wood in the wharf of this case, shall be deemed to have imposed a new legal obligation to handle the freight in this case, as it restricts the Plaintiff's rights and duties.

3) In this case, the notice of audit results in this case constitutes an administrative disposition, and the plaintiff filed an appeal suit seeking revocation on the premise that the contents of paragraph (2) of the notice of audit results in this case by this Court 2013Guhap1328, July 8, 2013, among the notice of audit results in this case, the plaintiff filed an appeal suit seeking revocation on the premise that the contents of paragraph (2) are administrative disposition. Thus, the plaintiff's lawsuit in this case is the most effective and appropriate means to bring an appeal suit against the disposition. Therefore, the plaintiff's lawsuit in this case cannot be deemed as the most effective and appropriate means to eliminate

In the above appeal litigation, even if there is a circumstance in which the content of paragraph (2) is not judged to be substantial due to procedural defect in the notice of audit results of this case, it cannot be viewed differently.

4) Therefore, the instant lawsuit is unlawful, and the Defendant’s defense prior to the merits is with merit.

4. Conclusion

It is decided as per Disposition by the assent of all participating Justices to dismiss the instant lawsuit.