(영문) 수원고등법원 2019.8.21.선고 2019누10753 판결

2. On July 25, 2018, the Defendant’s rejection disposition against the Plaintiff regarding the application for allocation of non-management authority’s investment in harbor works against the Plaintiff is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Quotation of the first instance judgment

The reasoning of the judgment of the court is as follows, and it is consistent with the judgment of the court of first instance, except for the use of "the legitimacy of the refusal of this case" in the judgment of the court of first instance 3. Of the judgment of the court of first instance (as stated in the judgment of the court of first instance 9 to 15.) as stated in paragraph (2). Thus, it shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act,

○ 제4쪽 제12행의 '항만법'을 구 항만법(2019. 1. 15. 법률 제16287호로 개정되기 전의 것, 이하 '항만법'이라 한다)』으로 고치고, 제16쪽(별지) 제2행의 '▣ 항만법'을 구 항만법(2019. 1. 15. 법률 제16287호로 개정되기 전의 것) 으로 고친다. 2. 이 사건 거부행위의 적법여부

A. The parties' assertion

1) The plaintiff's assertion

The defendant is within the jurisdiction of the Incheon Port Authority under Article 4 of the Port Authority Act of Article 27 (1) 7 of the former Enforcement Decree of the Harbor Act (hereinafter referred to as the "Rules of this case") in accordance with Article 4 of the former Enforcement Decree of the Port Authority

The refusal of this case was made on the ground that it constitutes a "harbor facility under the jurisdiction of the port works established."

However, the concept of ‘harbor facilities' and ‘harbor facilities under the jurisdiction of 'harbor facilities' is distinguished. The Incheon Regional 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 Authority

Since the port facilities of this case do not constitute "harbor facilities under the jurisdiction of port authorities established pursuant to Article 4 of the Port Authority Act", the refusal of this case under different premise is unlawful.

2) The defendant's assertion

A) The Plaintiff asserts that the meaning of “competent harbor facilities” under the provisions of this case should be limited to “where the State or a local government has invested in harbor facilities management rights,” but this is a narrow interpretation without any legal basis. The harbor facilities within the jurisdiction of harbor facilities under the Harbor Act should be interpreted as “harbor facilities under the jurisdiction of harbor facilities” under the terms and conditions of the Harbor Act.

Therefore, the rejection of this case is legitimate since the port facility of this case is not a port facility that can be exempted from usage fees pursuant to the provisions of this case.

B) Even if it is assumed that the instant port facilities in household affairs are not “harbor facilities under the jurisdiction of the Port Corporation” as stipulated in this case, the instant refusal is lawful within the scope of discretion.

(b) Markets:

1) The meaning of the "harbor facility under the jurisdiction of the State" under the provision of this case is whether the harbor facility of this case is a "harbor facility under the jurisdiction of the State" under Article 15 (1) of the Harbor Act. The provision of this case states that a person who uses a harbor facility other than the pertinent harbor facility may be fully or partially exempted from the user fee of the harbor facility, but it shall not be exempted from the user fee of the harbor facility if he uses the "harbor facility under the jurisdiction of the Corporation". On the other hand, the defendant asserts that the "harbor facility under the jurisdiction of the Corporation" means the "harbor facility under the jurisdiction of the Corporation", while the plaintiff asserts that the "harbor facility under the jurisdiction of the Corporation can exercise the management right."

For the following reasons, it is reasonable to interpret the "harbor facilities under the jurisdiction of the Corporation" as the "harbor facilities within the jurisdiction of the Corporation, as alleged by the plaintiff, for which the Corporation can exercise the right to manage and collect the user fee."

(1) Article 4(1) of the former Port Authority Act (amended by Act No. 16213, Jan. 8, 2019; hereinafter referred to as the "Port Authority Act") provides that "the Port Authority (hereinafter referred to as the "Corporation") shall be a corporation." Article 4(4) of the same Act provides that "the jurisdiction of the Corporation shall be the harbor zone (referring to the harbor zone under Article 2 subparag. 4 of the Harbor Act; hereinafter the same shall apply) of the harbor prescribed by Presidential Decree: Provided, That where necessary for the smooth performance of projects of the Corporation, the Authority may exercise its jurisdiction over harbor facilities, etc. other than the harbor zone prescribed by Presidential Decree." Article 2(1) and [Attachment] of the Enforcement Decree of the Port Authority Act provides that the Incheon Port Authority shall exercise its jurisdiction over the harbor zone under the Incheon Port Authority.

Meanwhile, Article 6 (1) of the Port Authority Act provides that "the State or a local government may invest movable and immovable property necessary for the business of the Corporation and the right to manage harbor facilities under Article 16 of the Harbor Act (hereinafter referred to as "right to manage harbor facilities"). In such cases, the value of investment in the right to manage harbor facilities shall be the value invested in the purchase, new establishment, extension, and opening of the relevant assets." The right to manage harbor facilities refers to the right to maintain and manage harbor facilities and to receive fees from users of the relevant harbor facilities (Article 16 of the Harbor Act). According to the aforementioned provisions of the Port Authority Act, even if the construction has been established with the jurisdiction over a specific harbor, the right to own or manage the harbor facilities within the jurisdiction of the Corporation does not naturally transfer or belong to the Corporation. The interpretation of Articles 6 (1) and 16 of the Port Authority Act is clear that the State, etc., who has ownership in the relevant harbor facilities, has invested in the Corporation with ownership in the harbor facilities or the right to manage the harbor facilities.

(2) Article 30(4) of the Harbor Act provides that the Minister of Oceans and Fisheries, etc. may collect user fees from persons using port facilities, and that a person prescribed by Presidential Decree may be exempted from user fees. Meanwhile, Article 30(1) of the Port Authority Act provides that the Corporation may collect user fees or rents from persons who intend to use or rent port facilities managed by the Corporation, and that matters prescribed by Presidential Decree under Article 30(2) may be exempted from user fees. Article 14 of the Enforcement Decree of the Port Authority Act specifically provides for the subject of exemption.

As can be seen, the Harbor Act and the Port Authority grant the authority to decide on exemption from the usage fees of port facilities. As seen earlier, considering the fact that the State-owned port facilities within the jurisdiction of the Corporation but the Minister of Oceans and Fisheries manages the relevant port facilities and collects user fees unless the State has invested in the Corporation the right to manage the harbor facilities, it is reasonable to interpret that whether the State is a “harbor facility under the jurisdiction of the Corporation” in the instant provision refers to the port facilities where the right to manage

(3) On the ground that Article 14(1)8 of the Enforcement Decree of the Port Authority Act provides that "a person who executes a harbor project within the jurisdiction of the Corporation uses harbor facilities within the jurisdiction of the Corporation in order to compensate for the total operating expenses incurred in the construction of harbor facilities reverted to the State pursuant to Article 15(1) of the Harbor Act" under Article 14(1)8 of the Enforcement Decree of the Port Authority Act shall be allowed to use the harbor facilities without compensation as well as other harbor facilities within the jurisdiction of the Minister of Oceans and Fisheries within the jurisdiction of the Minister of Oceans and Fisheries. A person who executes a harbor project within the jurisdiction of the Corporation shall be allowed to use the harbor facilities installed by him/her for free as well as other harbor facilities within the jurisdiction of the Corporation. A person who executes a harbor project within the jurisdiction of the Corporation shall be allowed to use the harbor facilities free of charge as well as those within the jurisdiction of the Corporation, and the purport of legislation under Article 14(1)8 of the Enforcement Decree of the Port Authority Act.

However, Article 14 of the Enforcement Decree of the Port Authority Act provides that the Port Authority may exempt user fees under Article 30(2) of the Port Authority Act. Thus, in order for the Authority to exempt user fees for harbor facilities pursuant to Article 30(2) of the Harbor Act, the Authority shall be a harbor facility that can collect user fees from the Port Authority pursuant to Article 30(1) of the Port Authority Act. If such interpretation is not made, the Corporation may infringe on the right to collect user fees from the Minister of Oceans and Fisheries, and only if the Minister of Oceans and Fisheries makes it possible to exercise user fees for the relevant

B) Whether the instant port facilities constitute “harbor facilities under the jurisdiction of the Port Corporation”

In full view of the statements in Gap evidence Nos. 5 through 7 (including paper numbers) and the fact-finding conducted by the court of the first instance on the Incheon chief of the Regional Maritime Affairs and Fisheries Office, the port facilities of this case are within the jurisdiction of Incheon Maritime Affairs and Fisheries, but the Minister of Oceans and Fisheries recognizes that the port facilities of this case are within the jurisdiction of Incheon Maritime Affairs and Fisheries, and that the Minister of Oceans and Fisheries has managed the port facilities of this case until the time when he did not invest the port facilities of this case in Incheon Maritime Affairs and

2) Determination on deviation from and abuse of discretionary power

A) Whether the refusal of the instant case constitutes a discretionary act

(1) Relevant legal principles

Whether an administrative act is a binding act cannot be uniformly defined. Determination should be made by taking into account the form and language of the legal system that forms the basis of the pertinent act, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself, etc. (see, e.g., Supreme Court Decision 2010Du20508, Jan. 27, 201).

(2) Determination:

(A) Article 15(1) of the Harbor Act provides that land and harbor facilities created or installed by a non-management authority’s harbor project shall, in principle, revert to the State at the time of completion of construction, and that Article 15(4) of the same Act provides that a non-management authority may gratuitously use harbor facilities reverted to the State so that the invested capital can be recovered, as prescribed by Presidential Decree,

Meanwhile, Article 30 (4) of the Harbor Act provides that "the Minister of Oceans and Fisheries, a harbor facility operator, or a lessee may collect user fees from persons who use harbor facilities pursuant to paragraphs (1) and (2): Provided, That a person prescribed by Presidential Decree may be exempted from all or part of the user fees." The provision of this case stipulates that a person who uses harbor facilities other than the relevant harbor facilities may be exempted from the user fees in whole or in part in order to compensate the total project cost used for the construction of harbor

(B) Unlike free use for the pertinent harbor facilities, the Minister of Maritime Affairs and Fisheries, etc., stipulates that “the use of other harbor facilities may be exempted in whole or in part, from user fees of the harbor facilities.” The exemption of user fees of the harbor facilities is an administrative act that basically gives a specific person benefits, and the administrative agency has left room for discretion because the requirements for exemption or specific standards are not uniformly determined under the aforementioned provision, and the Minister of Maritime Affairs and Fisheries, etc. need to exercise discretionary power as to whether to exempt the user fees of the specific harbor facilities for the efficient management and operation of the harbor facilities. In full view of the foregoing, it is reasonable to view that full or partial exemption of user fees under the instant provision is discretionary act.

B) Determination on deviation from and abuse of discretionary power

(1) Even though a statute that provides an administrative agency with certain discretion in determining the requirements and effects of a disposition, if an administrative agency took a disposition without balancinging the public interest to achieve the remaining disposition that is erroneous for him/her as not having discretion and the content and degree of disadvantage suffered by the other party to the disposition, such disposition itself constitutes an unlawful ground for revocation of the relevant disposition due to deviation from and abuse of discretionary power (see, e.g., Supreme Court Decisions 2014Du45956, Aug. 29, 2016; 2014Du10691, Aug. 29, 2017).

(2) With respect to the second application for the part of Incheon Port, the Defendant, without completely comparing and comparing the public interest to be achieved through the rejection of the application or any disadvantage incurred by the Plaintiff, determined that the instant port facilities are “harbor facilities under the jurisdiction of the harbor Corporation” as stipulated in the instant provision. Ultimately, the refusal of the instant application is erroneous in the misapprehension of discretionary authority or the non-exercise of discretionary authority, and thus, should be revoked.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the plaintiff's claim is revoked and it is decided as per Disposition.