[1] In a case where the management authority has calculated the total project cost, which is the basis for calculating the period of free use of harbor facilities by a non-management authority, as an implementer of a harbor project, in a case where the total project cost, which is the basis for calculating the period of free use of harbor facilities, falls short of the legal standard, the most effective and appropriate method of litigation (=in a case involving a party suit under public law, whether the non-management authority has the interest in verifying that

[2] The type of interest on construction included in the total project cost, which is the basis for calculating the period of free use of harbor facilities by a non-management authority, who is a harbor project implementer (i.e., the date of confirmation of completion of harbor construction), and whether the interest on construction falling within the intended period is excluded from the total project cost (negative with qualification)

[3] Whether the court can reduce the interest on construction in its own discretion, which is included in the total project cost, which is the basis for calculating the period of free use of harbor facilities by the non-management authority (negative)

[1] According to Article 17(1) and (3) of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995), and Article 19(2) and (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14853 of Dec. 29, 195), a non-management authority shall naturally belong to the State or a local government under the provisions of the Act regardless of the non-management authority's intent, and instead, the non-management authority shall acquire the right to use the pertinent harbor facilities within the scope of 20 years until the total amount of the usage fee reaches the total project cost, and the period of free use is determined by the total project cost. Thus, if the head of the local government calculates the total project cost improperly by the determination of the total project cost due to the difference between the amount and the total project cost based on legitimate standards, there is a legal apprehension and danger that the period of free use can not be used for the difference between the total project cost and the non-management authority's right to seek.

[2] The total project cost, which is the basis for calculating the period of free use by a non-management authority, includes "construction interest," other than investigation, design, net construction cost, compensation, and incidental cost based on the date of confirmation of completion of the relevant harbor project (Article 18 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 14853 of Dec. 29, 195). The occurrence of interest during the construction shall be deemed as the date of confirmation of completion of the harbor project, unless there are special circumstances. Even if the confirmation of completion was completed during the first construction period, the interest during the over-term construction period shall not be excluded from the total project cost unless it is acknowledged that there is a cause attributable to the non-management authority, who is the contractor, for the over-term construction period.

[3] Construction interest holders included in the total project cost, which is the basis for calculating the period of free use by a non-management authority, shall be calculated in accordance with the law, as the amount, duration, and grounds for occurrence are all stipulated in the law, and there is no legal basis for the court to reduce the amount at its discretion on the ground that the period of project has been extended due to a cause for which both parties are not responsible.

[1] Article 17 (1) and (3) of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995); Article 19 (2) and (3) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 14853 of Dec. 29, 1995); Articles 3 subparagraph 2 and 8 (2) of the Administrative Litigation Act; Article 228 of the Civil Procedure Act / [2] Article 17 (1) and (3) of the former Harbor Act (amended by Act No. 4925 of Jan. 5, 1995); Articles 18 and 19 (2) and (3) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 14853 of Dec. 29, 195); Article 19 (3) of the former Harbor Act / [3] Article 19 (2) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 1485 of Dec. 15, 1985, 197 of the Act)

[1] Supreme Court Decision 2001Du2485 decided Aug. 24, 2001 (Gong2001Ha, 2094)

Po Port Integrated Steel Co., Ltd. (Law Firm Barun Law Office, Attorneys Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Korea

Daegu High Court Decision 99Nu647 delivered on August 27, 1999

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

1. Benefits of confirmation;

Article 17(1) and (3) of the former Harbor Act (amended by Act No. 4925, Jan. 5, 1995; hereinafter referred to as the “Act”) provides that land and harbor facilities created or installed by a harbor project of a non-management agency (hereinafter referred to as a “non-management agency”) shall revert to the State or a local government upon completion of construction, and the non-management agency may use the reverted harbor facilities within the scope of total project cost as prescribed by the Presidential Decree. Article 19(2) and (3) of the former Enforcement Decree of the Harbor Act (amended by the Presidential Decree No. 14853, Dec. 29, 1995; hereinafter referred to as the “Decree”) provides that the period of free use shall be until the total amount of usage fees and usage fees collected from a non-management agency for consideration reaches the total project cost of the relevant harbor project, and the period shall be within the maximum of 20 years, which shall be determined by the head of the non-management agency for free use and the difference between the State or a local government within the total project cost.

On the other hand, since the user fee itself may vary depending on the type and degree of use as well as the change, it does not definitely determine whether the period of free use based on the total project cost exceeds 20 years at the time of calculating the total project cost. Therefore, in the aforementioned confirmation lawsuit, the Plaintiff, a non-management agency, must prove that the period of free use based on the total project cost calculated by the Defendant is less than 20 years, and it does not necessarily mean that there is a benefit

The decision of the court below to the same purport is correct, and there is no error in the misapprehension of legal principles as to the interest in confirmation as alleged by the ground of appeal (first point).

2. Grounds for the extension of construction works;

The total project cost, which is the basis for calculating the period of free use by a non-management authority, includes "construction interest" other than the survey cost, design cost, net construction cost, compensation cost, and incidental cost based on the date of confirmation of completion of the relevant harbor project (Article 18 of the Decree). The completion of construction interest shall be deemed as the date of confirmation of completion of the relevant harbor project, barring special circumstances. Even if the completion of construction is completed at the time when the initial period of construction expires, the interest during the over-term construction period shall not be excluded from the total project cost, unless it is recognized that there is a cause attributable to the non-management authority, who is the construction manager, for the over

The court below, based on its evidences, found that the harbor project which was approved from November 23, 1990 to December 1992 as the project period was completed on November 23, 1992, and the management agency did not grant a permit for the commercial use before confirmation of completion, and rejected the Plaintiff’s application for confirmation of completion as stated in its reasoning, including the problems arising from the harbor control facilities. The court below recognized that the management agency issued the confirmation of completion on January 31, 1994 to the Plaintiff on the last day of the extended period after obtaining approval from the management agency upon applying for extension of the project period after obtaining approval from the management agency on January 31, 1994, and issued the confirmation of completion to the Plaintiff on March 4, 1994. In light of the various circumstances stated in its reasoning, the court below determined that the Plaintiff did not make every effort to complete construction of the harbor control facilities through advice and cooperation with the Minister of Maritime Affairs and Fisheries to the Plaintiff, and that there was no reason for the extension of construction period due to the above harbor control facilities.

3. Whether to reduce the discretionary amount of interest on construction;

The interest of construction included in the total project cost is calculated in accordance with the law because both the amount, duration, and cause of occurrence are stipulated in the law, and there is no legal basis for the court to reduce the amount at its discretion on the ground that the project period has been extended due to a cause for which both parties are not responsible.

In light of the reasoning of the judgment below, it is proper to see that there are some inappropriate parts in the judgment below, and that the amount of construction interest calculated cannot be reduced at the discretion of the court, and there is no error in the misapprehension of legal principles, such as the ground for appeal No. 4) of the theory of lawsuit, incomplete deliberation, and

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)