1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1...

1. The reasons for the court’s explanation concerning this case are as follows, except for the addition of “determination on the Defendant’s argument” under Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, and thus, the same shall be cited in accordance with the reasoning for the judgment of the first instance.

2. Judgment on the defendant's argument of the trial

A. The Defendant’s alleged business return should either be higher or same than the weighted average capital cost (WACC, the Rightsed Average Co., Ltd. = Equity capital cost x equity capital ratio x other capital cost x business profit ratio x). Since tolls and business return rate are calculated in proportion to the above weighted average capital cost, in order to maintain tolls and business return rate, the elements constituting the weighted average capital cost, such as equity capital ratio and other capital ratio, should be observed.

Since the concession agreement of this case sets the business profit rate to 8.28% and sets the equity capital ratio to 25% as an element to compute it, the plaintiff is obligated to maintain the said equity capital ratio as stipulated in the concession agreement of this case in the course of implementing the project of this case.

Nevertheless, the Plaintiff violated the instant concession agreement by modifying its capital structure by arbitrarily lowering its equity capital ratio.

On the other hand, the Defendant has double the status as a party to a contract under public law and the status to seek the exercise of dispositions based on the Private Investment Act in the same private investment project as the instant project. Thus, apart from taking remedies for breach of the instant concession agreement, a public law contract, a supervisory order can be issued in compliance with the requirements within the discretionary scope prescribed by the Private Investment Act.

However, as in the case of this case, the plaintiff excluded corporate tax by lowering its equity capital ratio in order to stimulate profit and changing its capital structure.