2015Guhap1051 Revocation of Disposition of Imposing port facility user fees

Baban Operation Corporation

chief of a regional maritime affairs and fisheries office

June 25, 2015

August 27, 2015

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 17,73,840, additional user fee for the year 201, which reverts to the Plaintiff on November 26, 2014, as KRW 17,733,840, additional user fee for the year 2012, KRW 18,40,640, and additional user fee for the year 2013, KRW 19,086,990, and KRW 19,359,940, total of KRW 74,581,41, and KRW 410,00 for the additional user fee for the year 2014, which belonged to the Plaintiff.

1. Basic facts

A. The Plaintiff is a corporation that runs the business of managing and operating port facilities.

B. According to the implementation of the terminal operation company system, which provides a private wharf operating company with exclusive and exclusive responsibility for the lease of vessel-sharing and camping sites, etc. which are State-owned port facilities, the Defendant, who is the operator of port facilities, the “State-owned port substitute payment (64 lines)”, around 2009, appointed the Plaintiff as the operator of the port port substitute substitute payment (64 lines) (hereinafter “instant wharf”).

C. On September 2009, the Plaintiff selected as the operator of the instant wharf entered into a lease agreement (hereinafter referred to as the “instant lease agreement”) with the Defendant, setting the lease term as five years from May 11, 2008 to May 10, 2013, and set up a lease agreement (hereinafter referred to as the “instant lease agreement”) with the Defendant, as follows: 12,50 meters at the instant wharf; 45,898,00 meters at the camping site, passage 15,432 meters; 7,200 meters; 30,000 square meters; and 30,000 square meters at the other site (entry road); and 45,432 meters; and 45,000 square meters at the other site. The instant lease agreement was renewed on May 10, 2013, and extended the lease term until May 5, 2018.

According to the implementation of the wharf operating company for the instant wharf, the Defendant (hereinafter referred to as “A”) and the Plaintiff (hereinafter referred to as “B”) representatives selected as the terminal operating company enter into a lease agreement on the management, operation, etc. of harbor facilities of the instant wharf as follows: The lease term of the facilities stipulated in Article 2 (Lease Term) (1) through (5) shall be from May 11, 2008 to May 10 (5 years).

B. If the extension of the lease term is desired, A may request A to renew the lease term by not later than three months before the expiration of the term. In this case, B shall comply with the request of B unless there is no reason for the cancellation of the contract under the provisions of Article 14 or there is no actual simplification of the lease term. Article 3 (Methods for Payment of Rent and Rent) ① For the year of rent for B under the provisions of Articles 1 and 2 (hereinafter referred to as “rent”) shall be paid to B, “the method for calculating the long-term rent and the evaluation model for the settlement of the unclaimed operating company (KMI/203.12)” and “the method for calculating the rent for the newly established TRC rent for the year of 20 years after the expiration of the term of lease term of 7 years after the date of application for the new increase of rent for the 1.5 years after the date of application for the investment plan for the first five years after the expiration of the term of 1.5 years after the date of application for the new increase of rent for the 200th year.

Article 18 (Construction, etc. of Contracts) (1) If there is a conflict of opinion or dispute between A and B concerning the terms of this contract, the interpretation of A shall take precedence over the other party's interpretation, but the final interpretation of Article 19 (Arbitration and the competent court) shall be followed.2 With respect to the matters not specified in this contract among the disputes arising out of this contract, A may make a decision after consultation with B. Article 20 (Arbitration and the competent court) (1) (A), the matters to which the Arbitration Act may apply shall be resolved by arbitration of the Korean Commercial Arbitration Board, and the arbitration cost shall be borne.2) If a dispute that cannot be resolved by arbitration under paragraph (1) arises, the court at which A is located shall be the competent court.

[Attachment 2] The annual standard rent for a floating facility * 1) : The rent for the stone shall not be calculated by the method of calculating the rent due to the lack of performance records, such as the handling quantity. Thus, the selected operating company's business plan shall determine the appropriate handling quantity in consideration of the quantity under the selected operating company's business plan and the relevant loading and unloading capacity, and the rent for the stone shall be calculated after determining the appropriate handling quantity, and the settlement shall be made according to the annual calculation standards after the end of each year (the method

D. The calculation method of the rent for TPP, prepared by the Minister of Oceans and Fisheries, which applies to the instant lease agreement pursuant to Article 3(1) of the instant lease agreement, around January 2004 (hereinafter “the calculation method of the instant rent”) is as follows.

The standard rent for TPP TOC rent calculation scheme (KMI service result of December 2003): Warehouse and open storage area + passage area + loading and unloading equipment + Basic rental fee calculation method for construction of loading and unloading facilities x basic rental fee for each unit of port x basic rental fee for each unit of port x minimum quantity X-minimum rental fee for each unit of port x minimum quantity X-basic rental fee for each unit of port x maximum rental: the maximum quantity of quantity x x basic rental fee for each unit of port x the maximum quantity of rental x the maximum amount of rental x the standard rental fee for each unit of port x the calculated rental fee for each unit of port x the minimum quantity of rental x the calculated rental fee for each unit of port x the calculated rental fee for each unit of port x the calculated rental fee for each unit of port x the calculated rental fee for each unit of TPP x the calculated rental fee for each unit of service due to the lack of performance records, such as the quantity of handling x the calculated rental fee calculation method for each year after the end of the year.

The annual standard for calculating the annual rate of tin rent)* The rate of proper handling quantity = From the year 1005 to the annual processing quantity x 1005 to the basic rent for the preceding year (five years in storage, open storage + passage + tin rent) and the rate of increase of producer's prices for five years in the previous year (five years in accordance with the service result) and to implement the same as that of the following year where the producer has treated at least the optimal handling quantity even before five years excluding the highest and minimum price, and the adjustment in linkage with the increase rate for three years in which producers have treated at least the appropriate handling quantity, and to maintain balance with the level of early revitalization of the newly established hab and the rental route for existing TRC wharfs.

E. From 2008 to 2010, the actual disposal quantity, adequate handling quantity, and annual average handling quantity of the goods processed at the instant wharf are as follows:

A person shall be appointed.

F. From around 2008 to 2013, the Defendant calculated and imposed the following rent for the year 2008 to 2013 of the instant wharf on the Plaintiff.

(unit: ton, source)

A person shall be appointed.

In relation to the rent after 2011, the defendant applied the same provision to the basic rent (ware, open storage + passage + prior rental fee) for the preceding five years from the year following the year in which he handled the optimal handling quantity even before the fifth year in the calculation plan of this case, according to the service result, in accordance with the provision that "the same provision shall apply to the method to link the producer with the average value of the inflation rate for three years excluding the highest and lowest values among the increase rates of producers for the preceding five years (hereinafter referred to as "the present provision").

The rent for the year 201, which is the year following the year in which the appropriate volume of treatment is handled, is calculated on the basis of the basic rent for the year 2010, which is the previous year (341,366,000, which is calculated on the basis of 525,000 tons), and is paid by the Plaintiff for the rent for the year 2012 and 2013.

G. In relation to the interpretation of the instant provision, the Board of Audit and Inspection notified the Defendant of the guidelines for the application of the instant calculation scheme stating that, in cases where “the Defendant has treated the optimal handling quantity at the beginning of the opening (one to four years), the rent for the following year shall not be calculated by applying the inflation rate to the basic rent for the preceding year calculated on the basis of below the optimal handling quantity, but shall be calculated by applying the rate of inflation rate to the basic rent for the preceding year calculated on the basis of the rate of 100 per cent of the optimal handling quantity.”

H. Accordingly, on November 26, 2014, the Defendant: (a) issued a property notification of the rent for 2011 on the wharf of this case at KRW 366,029,560 (based on an annual average of 700,000 tons of basic rent for the year 2010, not an annual average of 525,000 tons; and (b) based on such notification, the Defendant issued a property notification of the difference between the rent for the year 2011 through 2013 and the rent for the year 2013 (excluding value-added tax); and (c) notified the Plaintiff of the payment of the rent for the year 2014 plus the rent for the year 2014 and the rent for the year 5,221,470 (excluding value-added tax); and (d) notified the Plaintiff of the payment of the rent for the year 205,214 or 294, the rent for the year 201.

A person shall be appointed.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including each number in the case of additional number), the purport of the whole pleadings

2. The plaintiff's assertion and relevant Acts and subordinate statutes;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

The Plaintiff treated 981,025 tons in excess of 70,000 tons in the year 2010, the three years following the instant lease agreement, and handled at least the appropriate handling volume before five years prior to the lease agreement. In such a case, according to the key issues of this case, the rent for 2011, which is the four years following the instant lease agreement, should be calculated on the basis of 75% of the appropriate handling volume in the previous year (2010), however, the Defendant calculated the rent for 2011 based on the 100% of the appropriate handling volume in the year 2010 after deviating from the limit of the literal interpretation of the instant key issues of this case. Based on this, the Defendant additionally imposed the total of the rent for 201,221,470 won in the year 201 through 2013, and the rent for 19,385,940 won in the year 2014.

2) Violation of the principle of trust protection

Even if the instant notification conforms to the instant issues, the Defendant agreed to the amount of the re-determination of rent from October 2013 to 2013 to KRW 26,00,000, and accordingly, the Plaintiff paid in full on November 25, 2013. In such a situation, imposing KRW 55,221,470 on the aggregate of the rents for the year 201 to 2013 would infringe the Plaintiff’s trust.

(b) Related statutes;

It is as shown in the attached Table related statutes.

3. Determination ex officio as to the legitimacy of the instant lawsuit

ex officio, we examine the legitimacy of the instant lawsuit.

Article 2(1)1 of the Administrative Litigation Act provides that “disposition” which is the object of an appeal litigation is an exercise of public authority or its refusal as an enforcement of law with respect to a specific fact by an administrative agency, or any other similar administrative action. Therefore, in order to constitute a disposition subject to an appeal litigation, it shall be the exercise of public authority by an administrative agency unilaterally in a superior position, and the declaration of intent based on the contract shall not be deemed as a party to a contractual relationship under public law, which is on an equal footing (see Supreme Court Decision 2013Du6244, Apr. 24, 2014). In this case, it is reasonable to see that the instant lease contract concluded with the Plaintiff under the terminal operating company system is a public contract under the law with the State as a private economic entity, which is concluded at an equal position with the other party (see Supreme Court Decision 20

In full view of the fact that Article 20(1) of the instant lease agreement provides for the settlement of rents between the Plaintiff and the Defendant in the event of any change in the size of leased facilities, etc., and that Article 20(5) of the instant lease agreement provides that the matters subject to re-law can be resolved by arbitration of the Korea Commercial Arbitration Board, among the disputes arising out of the instant lease agreement, shall be resolved by arbitration of the Korea Commercial Arbitration Board, the notification of the instant lease agreement that the Defendant notified the Plaintiff to pay rents pursuant to the instant lease agreement, not by public authority, but by the Defendant’s act of having been done on an equal basis with the Plaintiff as an administrative agency, not on the part of the Plaintiff as a private economic entity.

The plaintiff argues that Article 30 (1) of the Harbor Act provides that a person who intends to use a harbor facility shall obtain permission from the management agency, and that Article 30 (4) of the same Act provides that the Minister of Oceans and Fisheries, a harbor facility operator, or a lessee may collect a user fee from a person who uses a harbor facility pursuant to paragraphs (1) and (2) of the same Article, so the notification of this case is an exercise of public authority directly affecting the rights and obligations of the people, which constitutes an action subject to appeal litigation, and the Supreme Court also held that the disposition imposing a user fee is illegal on the premise that the notice of imposition of a user fee by the management agency is a disposition.

However, Article 30(1) of the Harbor Act provides that a person who is able to use harbor facilities (excluding navigational aids; hereafter the same shall apply in this Article) and obtains permission from the Minister of Oceans and Fisheries and the managing authority, as alleged by the plaintiff, as well as a person who has entered into a lease contract with the Minister of Oceans and Fisheries or a person who has entered into the lease contract with the person who has been delegated or entrusted with the operation of the harbor facilities by the Minister of Oceans and Fisheries or the person who has entered into the relevant lease contract. Since the usage fees prescribed in Article 30(4) are separate from the rent under the lease contract, the notification of this case concerning the imposition of rent cannot be deemed an administrative disposition subject to appeal litigation. In addition, the Supreme Court Decisions 2001Du3068 Decided October 9, 200 and Supreme Court Decisions 95Nu1590 Decided January 26, 196, etc. cited by the plaintiff, it is inappropriate to invoke this case, unlike this case where the notice of rent under the lease contract was given.

4. Conclusion

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

The presiding judge, the Park Judge;

Judge Senior Professor

Support for Judges

1) The sum of the rent for the year 2014 that the Defendant is liable to impose on the Plaintiff is KRW 424,193,970, or is based on the result of performance evaluation of the terminal operating company in 2013.

The amount of 10,00,000 Won was reduced by 10,000, and the sum of 414,193,970 Won was notified to the Plaintiff, but the Plaintiff was above 424,193,970 Won.

The instant claim is filed on the premise that it is the amount imposed and notified as rent in 2014.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.