[1] The requirements for reduction of or exemption from fees for occupation and use of public waters pursuant to Article 9(1)1 of the former Public Waters Management Act and Article 16 subparag. 1(g) of the Enforcement Decree of the same Act by a person who installs public facilities belonging to the State or a local government, and the criteria for determination thereof

[2] The case holding that where a company established by a joint investment of several construction companies collects project expenses by collecting tolls of the above road for 40 years in lieu of the transfer of ownership to the local government after completing the connection road between Busan-do and the local government, and where the toll revenue falls short of a certain amount, the company is deemed to fall under the "person who installs public facilities belonging to the local government" under Article 16 subparagraph 1 (g) of the former Enforcement Decree of the Public Waters Management Act, but it does not fall under the "person who occupies and uses public facilities belonging to the local government for non-profit business for the purpose of public interest", and thus, it cannot be exempted from the reduction

[1] According to Article 9(1)1 of the former Public Waters Management Act (amended by Act No. 7481 of Mar. 31, 2005) and Article 16 subparag. 1(g) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19079 of Sep. 30, 2005), if a person who installs public facilities belonging to the State or a local government does not constitute occupancy or use for a non-profit business for the purpose of public interest, the occupancy or use fee of public waters shall not be reduced or exempted. Whether a person who has obtained the occupancy or use permit of public waters occupies or uses public waters for a non-profit business for the purpose of public interest shall be determined in consideration of the contents and purport of the relevant statutes, the purpose, content, size, nature, etc. of the relevant business, etc.

[2] The case holding that where a company established by a joint investment of several construction companies collects project expenses by collecting tolls of the above road for 40 years in lieu of the transfer of ownership to the local government after completing the connection road between Busan-do and the local government, and where the tolls revenue falls short of a certain amount, the company is deemed to be a "person who installs public facilities belonging to the local government" under Article 16 subparagraph 1 (g) of the former Enforcement Decree of the Public Waters Management Act, but it does not constitute "a person who occupies or uses public facilities belonging to the local government for a non-profit business for the purpose of public interest" and thus, it cannot be reduced or exempted from the usage fees

[1] Article 9 (1) 1 of the former Public Waters Management Act (amended by Act No. 7481 of March 31, 2005); Article 16 subparagraph 1 (g) of the former Enforcement Decree of the Public Waters Management Act (amended by Presidential Decree No. 19079 of September 30, 2005) / [2] Article 9 (1) 1 of the former Public Waters Management Act (amended by Act No. 7481 of March 31, 2005); Article 16 subparagraph 1 (g) of the former Enforcement Decree of the Public Waters Management Act (amended by Presidential Decree No. 19079 of September 30, 2005)

Gyeong Sea Road Co., Ltd. (Law Firm Chungcheong, Attorneys Park Yong-ok et al., Counsel for the defendant-appellant)

City Mayor Do Governor

Busan High Court Decision 2005Nu3493 decided Oct. 27, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 9 (1) 1 of the former Public Waters Management Act (amended by Act No. 7481 of Mar. 31, 2005; hereinafter the "Act") provides that where a person who has obtained permission for occupancy or use of public waters occupies or uses them for a non-profit business for the public interest prescribed by Presidential Decree, the management authority of public waters may reduce or exempt occupancy or use fees as prescribed by Presidential Decree. Article 16 subparagraph 1 (g) of the Enforcement Decree of the Act (amended by Presidential Decree No. 19079 of Sept. 30, 2005) provides that where a person who installs public facilities belonging to the State or a local government occupies or uses them for a non-profit business for the public interest, the full amount of occupancy or use fees of public waters shall not be reduced or exempted, and where a person who has obtained permission for occupancy or use of public waters occupies or uses them for a non-profit business for the public interest, the purpose and scale of the relevant project, the purpose and nature of the relevant provisions, and the relevant circumstances should be considered.

According to the reasoning of the judgment below, the court below found facts based on the adopted evidence, and determined that the plaintiff is a person who installs public facilities belonging to the local government, such as collecting tolls for 40 years in lieu of transferring the ownership of the above connecting road, and that the plaintiff is expected to collect the above project cost by managing and operating the business facilities, such as collecting tolls for 40 years in lieu of transferring the ownership of the above connecting road. The construction cost collected by the plaintiff already includes the profits equivalent to the above connecting project cost, the actual profit rate of the above connecting road construction project is scheduled to be 9.49% per annum, and the tolls is calculated based on the above actual profit rate, and the tolls is calculated based on the above actual profit rate, and the Busan Metropolitan City and the Gyeongnam-do preserve the below amount, and the plaintiff is a stock company established by investment in various construction companies for the construction, management, operation, etc. of the above connecting road, and it is difficult to view that the above connecting road is a non-profit business for the purpose of public interest.

In light of the above legal principles and records, we affirm the judgment of the court below, and there is no error in the misapprehension of legal principles as to non-profit business for the purpose of public interest, such as the point of appeal and the exemption of user fees. The grounds for appeal

2. As to the grounds of appeal Nos. 2 and 3

The court below held that even if the Minister of Oceans and Fisheries took part in the members of the Private Investment Project Deliberation Committee for the conclusion of the instant concession agreement, since the Minister of Oceans and Fisheries is not the administrative agency for the occupation and use of the public waters in this case, the Defendant cannot be deemed to have given the public opinion that is the subject of trust to the Plaintiff, and the contents of the instant concession agreement are effective between the Plaintiff, Busan and Gyeongnam-do, and thus, it cannot be deemed to have reached the effect on the Defendant, not the parties to the instant concession agreement, and there is no evidence to acknowledge that there was a practice to exempt the occupation and use fees of the public waters in private investment projects prior to the conclusion of the instant concession agreement, and thus, the Defendant cannot be deemed to have made the public opinion statement that is the subject of trust to the Plaintiff.

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the application of the principle of trust protection. This part of the grounds for appeal cannot be accepted.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)