[1] Whether the harbor site is excluded from the scope of permission for the use of harbor facilities under the former Harbor Act (negative), and whether it complies with the restriction on the permitted use (negative)

[2] Whether it is legitimate to additionally impose the difference after the lapse of the permitted period, where an administrative agency erroneously collects the user fee for harbor facilities less than that stipulated in the former Rules on the Use of Harbor Facilities

[1] The harbor site is not subject to the permission for use of harbor facilities under the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995), and it is not subject to the permission for use of harbor facilities under Article 26 of the Enforcement Decree of the State Property Act under Article 14 (3) of the same Rule, because there is no separate provision on the user fee for the use of the harbor facilities (amended by Ordinance of the Ministry of Construction and Transportation No. 1017 of Dec. 4, 1993, repealed by Ordinance No. 47 of Jan. 25, 1996). Since it is not subject to the permission for use of harbor facilities under the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995), it is not subject to any separate restriction on the use of the harbor facilities. Thus, even if the harbor site, other than the cargo storage and disposal facilities, was permitted for the use of the

[2] If the user fee was determined at a certain amount in the permission for use of harbor facilities, even if the user fee was determined at a lower price than the amount under Article 14(1) or (3) of the former Rules on the Use of Harbor Facilities due to mistake, it is not permissible to impose the difference on the ground that the user paid the user fee as prescribed by the permission for use and calculated the user fee due to mistake when the period of permission for use has elapsed. If the user fee was determined in the form that the user fee was calculated in accordance with the relevant Acts and subordinate statutes, such as the former Rules on the Use of Harbor Facilities, without specifying a certain amount, if the user fee was collected at a lower price than the user fee under Article 14(1) or (3) of the former Rules on the Use of Harbor Facilities due to the erroneous calculation of

[1] Article 2 subparag. 6 and Article 27 of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995), Article 14 of the former Rules on the Use of Harbor Facilities (amended by Ordinance of the Ministry of Construction and Transportation No. 1017 of Dec. 4, 1993, repealed by Ordinance of the Ministry of Construction and Transportation No. 47 of Jan. 25, 1996) / [2] Articles 2 subparag. 6 and 27 of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995), Article 14 of the former Rules on the Use of Harbor Facilities (amended by Ordinance of the Ministry of Transport and Transportation No. 1017 of Dec. 4, 1993, repealed by Ordinance of the Ministry of Construction and Transportation No. 47 of Jan. 25, 196)

[2] Supreme Court Decision 77Nu16 delivered on July 12, 197 (Gong1977, 10250) Supreme Court Decision 88Nu5815 delivered on December 11, 1990 (Gong1991, 492)

Hyundai Mining Co., Ltd. (Attorney Jeong-tae, Counsel for defendant-appellant)

Ulsan Regional Maritime Affairs and Fisheries

Busan High Court Decision 94Gu2572 delivered on May 11, 1995

The judgment below is reversed, and the case is remanded to Busan High Court.

1. The reasoning of the judgment below is as follows.

In full view of the City’s evidence, the lower court found that the Plaintiff’s ownership of at least 1,260 square meters was 1,260 square meters on October 25, 198 among the above site for port facilities in Ulsan-si ( Address omitted), which was managed by the Defendant, and that the Plaintiff was granted permission for the use of at least 1,307 square meters for each of 9,28 square meters around December 18, 191 as the site for port facilities. The Plaintiff used 2,307 square meters for 11,109 square meters for 13,416 square meters for 3,000 square meters for 18,000 square meters for 13,000 square meters for 3,000 square meters for 1,000 square meters for 3,000 square meters for 1,000 square meters for 3,000 square meters for 3,000 square meters for 17,000 square meters for 97.

2. We examine the grounds of appeal.

A. As to the Plaintiff’s ground of appeal

Of the evidence presented by the court below, there are the drawings attached to Gap evidence 1 (collection of port facility user fee) and Eul evidence 2-2 (Audit and Cadastral Records) among the evidences presented by the court below, and the defendant also seems to impose the indemnity of this case by recognizing the size of the plaintiff's excessive use according to this evidence as above.

However, according to the drawings attached to Gap evidence No. 1 or Eul evidence No. 2-2, not calculated by the actual measurement. According to Eul evidence No. 7 (Request for Cadastral Survey), Eul evidence No. 9-1, and Eul evidence No. 10-2 (each survey result), the defendant, after the disposition of this case, confirmed the part of the plaintiff's permitted use and the part of the excess use under cadastral survey No. 1, Oct. 21, 1993 and calculated the area, the location of each part of the plaintiff's use is different from that of Eul evidence No. 2-2. The plaintiff's total use area is 13,267 square meters, excess use area is 2,719 square meters, and the plaintiff's total use area is 13,416 square meters attached to Gap evidence No. 2-2, and there is no difference between the plaintiff's report and the land survey No. 2,814 square meters as evidence and the record No. 2-2.

In addition, there is no evidence to prove that the Plaintiff has been using the above excess use area in the record as the site for the installation of the regular salt farm and the site for the regular site as above from the above date.

The court below held that the part of excess use for each of the above purposes was used together with the permitted use portion on the premise that the plaintiff used the above excessive use portion for each of the above usage, on the premise that the plaintiff used the above excessive use portion for each of the above usage, as a site for the installation of 1,109 square meters and 11,109 square meters as a site for the installation of Mesium, and held that each of the above permitted periods for excess use (the time) recognized by the court below (the above 1,260 square meters on October 25, 198 and December 18, 191, according to the records, the above permitted date for use for the above 1,260 square meters is deemed to have been the date for the above permitted use on November 27, 199 and the above 9,28 square meters on July 31, 192. The court below found the above permitted date for each of the above excessive use areas to have been used for each of the above excessive use areas.

However, according to the records, the above excessive use part can be recognized as being used for various purposes, such as automobile passage roads, regular open storage yards, non-party member Lebacon Co., Ltd., office storage yard, vehicle maintenance shop, container container storage yard, etc. As such, it is difficult to view the excessive use part as being used together with the above 1,260 square meters and 9,288 square meters for each use.

Nevertheless, the court below recognized that the plaintiff used the above area as the site for the installation of the ground salt plant and the site for the temporary site as above, and ruled that the defendant was lawful to impose the compensation for the above excessive use area during the above excessive use period. The court below did not err in the misapprehension of the law that affected the conclusion of the judgment by admitting facts without evidence or by admitting facts contrary to the rules of evidence, or by admitting facts contrary to the rules of evidence, and there is a reason to point this out.

B. As to the Defendant’s ground of appeal

The Harbor Act (amended by Act No. 4358 of March 8, 1991, which was amended by Act No. 4925 of Jan. 5, 1995, the same shall apply hereinafter) provides that a person who intends to use harbor facilities shall obtain permission from the management agency (Article 27(1)), and the management agency may collect fees from the users under the conditions as prescribed by the Ordinance of the Ministry of Construction and Transportation (Article 27(3) of the same Act. The Rules on the Use of Harbor Facilities (amended by Ordinance No. 975 of Apr. 27, 1992, which included the special provisions on the Ministry of Transport and Maritime Affairs No. 1017, Dec. 4, 1993; hereinafter the same shall apply) provides that the Minister of Maritime Affairs and Fisheries shall not impose the fees for the use of the harbor facilities, including the fees for the use of the dedicated harbor facilities for the use of the dedicated harbor facilities for the use of the dedicated harbor facilities (Article 7(3) of the State Property Act).

In addition, if the user fee was determined at a certain amount in the permission for use of harbor facilities, even if the user fee was determined at a lower price than the amount under Article 14(1) or (3) of the Rules on the Use of Harbor Facilities due to an error, it shall not be allowed to additionally impose the difference on the ground that the user paid the user fee as prescribed in the permission for use and at least the period of permission use elapsed due to mistake. However, if the user fee was determined in the form that the user fee was calculated in accordance with the relevant Acts and subordinate statutes, such as the former Rules on the Use of Harbor Facilities, without specifying a certain amount, if the user fee was collected at a lower price than the user fee under Article 14(1) or (3) of the Rules on the Use of Harbor Facilities due to an erroneous calculation of the user fee, it shall not be deemed that the subsequent imposition of the difference would violate the original permission for use or violate the principle of good faith, etc. (see Supreme Court Decisions 7Nu16, Jul. 12, 197; 8Nu5815, Dec.

Therefore, there is no error of law that the defendant permitted the use of the above harbor site 9,28 square meters to the plaintiff for the purpose of the permanent burial. However, in granting permission for use, it is difficult to conclude that the defendant is illegal to additionally impose the difference between the usage fees according to the fixed rate of the usage fees for the permanent burial and the usage fees under Article 26 of the Enforcement Decree of the State Property Act according to whether the use fees are set at a certain amount calculated in accordance with the rate of the usage fees for the permanent burial under the attached Table in the Rules on Use of Harbor Facilities.

Nevertheless, the court below held that it was unlawful to additionally impose the difference between the above fees as long as it was not revoked on the premise that the permission to use the above 9,288 square meters of the above harbor site for the purpose of the camping site was illegal on the ground that it was not a camping site facility. Thus, the court below erred in the misapprehension of legal principles as to the permission to use harbor facilities and the collection of user fees under the Harbor Act, and there is a reason to point this out.

3. Therefore, without examining the remaining grounds of appeal by the plaintiff and the defendant, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)