2017Du37215 Requests for cancellation, such as change in the rental fee rate for harbor facilities

South East East Power Development Co., Ltd.

Law Firm (Bae, Kim & Lee LLC)

[Defendant-Appellant] 1 and 3 others

Incheon Harbor Corporation

Law Firm Sejong, et al., Counsel for the defendant-appellant

Seoul High Court Decision 2015Nu36326 Decided February 3, 2017

February 27, 2020

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case history and key issue

A. According to the reasoning of the lower judgment, the following facts are revealed. (1) The Plaintiff is a public institution that operates an electric power business to sell electricity to the Korea Electric Power Corporation using the coal thermal power technology, and is using ○○ Power Power Plant (hereinafter “the instant harbor facilities”) located in the Incheon Cheongjin-gun ( Address omitted) (hereinafter “○○○○”). On July 11, 2005, the Defendant was a construction established pursuant to the Port Authority Act and manages the instant harbor facilities by taking over duties concerning the development, management, and operation of the Incheon port facilities from the Incheon Maritime Affairs and Fisheries Office. (2) On April 16, 2014, the Defendant imposed the Plaintiff the Incheon 's provision on the use and use fees of the port facilities in Incheon 's port facilities in Incheon' (Article 242, hereinafter “the instant provision”). (3) The Defendant disposed of the instant port facilities at the rate of 21, 2012, and 26).

B. The Plaintiff filed a lawsuit seeking revocation of the instant disposition, and the lower court determined that the instant disposition was unlawful on the following grounds. (1) It is reasonable to view that the fees for the use of the port facilities are imposed only on the use of port facilities which serve as the fees for the use of the cargo, and the charges for the use of the port facilities which are the fees for the use of the cargo. “The portion of the fees for the use of the port facilities which includes the facilities within the area subject to the collection of the fees for the use of the cargo, out of the standards for calculating the rates prescribed in the instant provisions, should be deemed unlawful beyond the delegation scope of the relevant Acts and subordinate statutes. (2) The use of the sea route or anchorage shall be deemed to refer to the use of the cargo as the passage of the vessel itself or for the anchorage of the vessel itself. It is difficult to view that the ultimate purpose of the use of the sea route or anchorage is to impose the charges for the use of the cargo facilities, regardless of whether the charges for the use of the cargo facilities and the charges for the use of the cargo facilities are imposed on the port facilities.

(6) Even if the cargo is indirectly used for a marina service route or anchorage, the tonnage of the ship, including the space of the loading place for the cargo, is already included in the cost of loading the cargo at the cost of loading the cargo. Thus, it is deemed that the cost of using such as home, indirect service route or anchorage has already been collected.

There is sufficient room.

C. We examine the legal basis of the instant disposition and the issues of the instant case. (1) The Port Authority shall collect user fees from those who intend to use harbor facilities managed by the Port Authority, and the type of user fees that the Port Authority may collect is prescribed by Presidential Decree (Article 30(1)). Accordingly, the Enforcement Decree of the Port Authority determines the type of user fees as vessel fees, freight charges, passenger terminal usage fees, and exclusive usage fees (Article 13(1)1), and stipulates that matters necessary for the detailed classification and details of user fees that the Port Authority may collect shall be determined and publicly notified by the Minister of Oceans and Fisheries (Article 13(2)). “Regulations on the detailed classification, etc. of user fees and rents collected by the Port Authority” (Article 13(2)).

The Ministry of Oceans and Fisheries's announcement No. 2013- 28, hereinafter "the detailed announcement of this case") is subdivided into "cargo charge" and "cargo charge" (Article 3 (1) 1 (b) and "cargo charge" (Article 3 (2) 1 (b)). The detailed criteria for calculation are set by including water facilities in facilities subject to collection of cargo charges (Article 3 (2) 11. b. (1) of the attached Table 11).

Meanwhile, when the Port Authority collects user fees, it shall determine the rate of user fees by type, as prescribed by Ordinance of the Ministry of Oceans and Fisheries (Article 30(3) of the Port Authority Act). Accordingly, when the Port Authority intends to report on the rates, etc. by type, it shall submit to the Minister of Oceans and Fisheries a document stating the type of user fees, subject matter of collection, rate, collection standard, application method, etc. (Article 12(1) of the Enforcement Rule of the Port Authority Act). Accordingly, the instant provision established by the Defendant (Article 4(1)1 of the Enforcement Rule of the Port Authority

Therefore, the legal basis for the instant disposition is Article 30(1) and (3) of the Port Authority Act, Article 13(1)1(b) and (2) of the Enforcement Decree of the Port Authority Act, Article 12(1) of the Enforcement Rule of the Port Authority Act, Article 3(1)1(b) and (2) of the detailed public notice of this case / [Attachment 1] concerning the water zone facilities among the facilities subject to the collection of cargo charges [1.b. (1.(b); hereinafter referred to as the “detailed public notice clause of this case], Article 4(1) of the instant provision / [Attachment 1] of the instant provision, and the part concerning the water zone facilities among the facilities subject to the collection of cargo charges [1.b. (1)].

(2) The part pointed out by the court below as the illegal cause of the disposition of this case is not the rate of the cargo entry and departure fee, but the facility of the water zone, such as sea routes and anchorages, etc., is included in the facility subject to the collection of the cargo entry and departure fee. In order to determine the illegality and invalidity of "the part of the facility included in the water zone in the facility subject to the collection of the cargo entry and departure fee" as the ground of the provision of this case, first of all, the determination of whether the provision of detailed notice of this case, which included the water zone in the facility subject to the collection of the cargo entry and departure fee,

2. Whether it deviates from the limits of delegated legislation;

A. In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of the scope of delegation by the parent law or whether the subordinate statute complies with the limits of delegation should be made based on the following factors: (a) whether the contents of the subordinate statute must be governed by the principle of parliamentary reservation, along with whether the legislative purpose and contents of the pertinent provision, the structure of the provision, and the relationship with other provisions, should be comprehensively taken into account; (b) whether the delegation provision itself has exceeded the limits of literal meaning; (c) whether the contents of the subordinate statute fall within the scope of prediction of the contents delegated by the mother law itself; and (d) whether the contents of the delegation can be evaluated as a new legislation beyond the stage of concreteizing the delegation by expanding or reducing the scope of the terms used in the delegation provision beyond the bounds of the delegation (see Supreme Court en banc Decision 2012Du23808, Aug. 20, 2015).

The specific scope of delegation differs depending on the type and nature of the subject matter to be regulated, and thus, uniform standards cannot be determined. However, at least, in cases where the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the relevant law or superior law, any person can predict the outline of the contents to be stipulated in the delegation order from the relevant law or superior law. In such cases, the predictability of the delegation clause shall not be determined with only one of the above paragraph clause, but shall be determined by systematically and systematically considering the overall system, purpose and purpose of the law to which the delegation clause belongs, the form and content of the delegation clause, and the relevant laws and regulations, and further, it is necessary to examine each specific and individual, depending on the nature of the subject matter to be regulated (see Supreme Court Decision 2016Du35199, Jan. 12,

B. Examining the aforementioned provisions of the Port Authority Act, the Enforcement Rule, the system, characteristics of the domestic port operation policy, and the port facility usage fee system, operating status, etc., in light of the aforementioned legal principles, it can be sufficiently predicted that the facility subject to the instant detailed public notice provision will include water-related facilities, such as ocean lanes or anchorages, at least. Therefore, the instant detailed public notice provision may not be deemed to have exceeded the bounds of delegated legislation by deviating from the scope delegated by the Port Authority. The following reasons are divided into multiple different port facilities. (1) Whether a certain type of harbor facilities should be determined as a facility subject to the collection of user fees, and who should bear the user fees, are included in the vessel operating policy, the cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-sharing cost-based cost-sharing cost-sharing cost-based cost-sharing cost-sharing cost-based cost-based cost-sharing cost-based.

Port Authority may collect user fees from those who intend to use port facilities (Article 30(1) of the Port Authority Act), 'harbor facilities' means basic facilities, functional facilities, support facilities, port-friendly facilities, facilities in a harbor zone designated and publicly notified by the Minister of Oceans and Fisheries (Article 2 subparag. 5 of the Harbor Act), 'harbors' means facilities in a harbor zone designated and publicly notified by the Minister of Oceans and Fisheries (Article 2 subparag. 5 of the Harbor Act), and 'harbors' means places equipped with facilities for ship entry, boarding and unloading, loading, unloading, storing and disposing of cargo, and facilities for assembling, processing, packing, and manufacturing of cargo (Article 2 subparag. 1 of the Harbor Act); 'harbor route' means a waterway designated and publicly notified in accordance with the Act on the Arrival, Departure, etc. of Ships for the passage of vessels into and from port facilities (Article 2 subparag. 11 of the Act on the Arrival, Departure, etc. of Ships).

For the safe passage of vessels, sufficient width and depth should be secured, and since vessels mainly use a sea route for the transportation of cargo, the maintenance of a sea route ultimately contributes to securing the common safety of vessels and cargoes. If a vessel is loaded with cargo, the maintenance of a sea route will contribute to securing the common safety of vessels and cargoes.

Since additional dredging may be required to maintain the safety depth, there is a difference between a vessel loaded with cargo and a vessel not so, using the water zone facilities. This also applies to an anchorage, which is a water zone facility other than a sea route.

Comprehensively taking account of these circumstances, the issue of whether to use harbor facilities ought to be determined on the basis of whether the use of harbor facilities has special benefits due to the burden of the beneficiary. The benefits derived from the use of the sea route, etc. for the purpose of loading and unloading can be seen not only as the owner of the vessel but also as the owner of the cargo who is the disposal authority of the cargo. Accordingly, imposing not only the user fee of the sea route facilities, such as the sea route, but also some of the owners using the sea route, etc. for the purpose of loading and unloading the cargo violates the purpose of delegation

(4) If an average shipper, including the Plaintiff, is in violation of the principle of beneficiary burden, it can be sufficiently predicted that the facility of the water area, such as sea routes, will be included in the facility subject to collection of cargo entry and departure fee.

3. Whether the disposition of this case is unlawful

'The part that included the water area facilities in the facility subject to the collection of cargo entry fees' among the criteria for the calculation of the rate of the provision of this case is legitimate, and the disposition of this case based on the provision of this case should be deemed lawful.

Nevertheless, the lower court determined that the instant disposition based on the instant provision was unlawful since it deviates from the delegation scope of this upper-tier statute, as it is unlawful in that “the part that included water facilities in the facilities subject to the collection of cargo entry and departure fees,” among the standards for calculating the rates of the instant provision. In so doing, the lower court erred by misapprehending the legal doctrine on the limitation of delegated legislation

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook

Justices Jo Hee-de

Justices Kim Jae-hyung

Justices Lee Dong-won