2018Guhap68750 Action for revocation of rejection disposition of allocation

A Stock Company

Law Firm aiming at Law Firm

Attorney Park Jae-jin, Counsel for the defendant-appellant

Regional Maritime Affairs and Fisheries Office

Attorney Kim Jong-sung et al., Counsel for defendant-appellant

March 27, 2019

April 25, 2019

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's rejection disposition against the plaintiff on July 25, 2018 against non-management authority that made against the plaintiff is revoked.

1. Details of the disposition;

A. The Plaintiff is a company whose business purpose is port loading and unloading business.

B. The Plaintiff, upon executing and completing the new construction work of B, was to use the wharfs free of charge from April 26, 2006 to August 2019. ② The Plaintiff was to use the wharfs free of charge from July 2, 2009 to January 2, 2021 upon completing the new construction work of C, which is a harbor facility.

C. The Plaintiff, along with D Co., Ltd. and E Co., Ltd. (hereinafter “E”), implemented a 'harbor construction project with the F non-management authority' in total project cost of KRW 76,431,617,700 (hereinafter “instant construction project”), and completed the construction on January 26, 2018.

D. On June 18, 2018, the Plaintiff filed an application with the Defendant to compensate for the amount of KRW 11,464,742,655, the total project cost of the instant construction project, which is reverted to the Plaintiff, for free use of harbor facilities as indicated in the following table (hereinafter “the first application”).

A person shall be appointed.

E. On June 26, 2018, the Defendant rejected the Plaintiff’s application for allocation on the following grounds: (a) the part concerning Pyeongtaek, Jin, and Gun Industrial Port in the first application; (b) the part concerning Incheon Port is under the jurisdiction of the Incheon Port Authority pursuant to Article 4(4) of the Port Authority Act as a port establishing the Port Authority; and (c) the exemption from the use of harbor facilities (investment preservation) under Article 27 of the Enforcement Decree of the Harbor Act is excluded from the case of using harbor facilities under the jurisdiction of the Port Authority; and (d) the application for allocation

F. On July 18, 2018, the Plaintiff filed an application with the Defendant for free use of harbor facilities (hereinafter referred to as “second application”) to compensate for the amount of KRW 11,464,742,65 of the total project cost of the instant construction project + KRW 3,821,580,885 of the acquisition amount of the Plaintiff’s ownership at the time of the first application of the instant construction project + KRW 3,821,580,885 of the acquisition amount of the transfer of the rights and obligations from E; KRW 5,100,00,000 of the transfer amount of Pyeongtaek Port as listed below (hereinafter referred to as “second application”).

A person shall be appointed.

G. On July 25, 2018, the Defendant rejected the Plaintiff’s second application on the following grounds: (a) on the ground that the part concerning Pyeongtaek and Jinaggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

【Facts without dispute over the grounds for recognition, entry of Gap's evidence 1 through 4, purport of the whole pleadings

2. Determination on the defense prior to the merits

A. As to the qualifications for the defendant

1) Since the chief of a regional maritime affairs and fisheries office having jurisdiction over each harbor under Article 91(1)17 of the Enforcement Decree of the Harbor Act delegates the authority to collect and exempt the user fees from the users of harbor facilities under Article 30(4) of the Defendant’s defense prior to the main harbor, the Defendant has no authority to collect and grant exemption from the user fees for harbor facilities under Incheon Port, and the instant harbor facilities are not under the jurisdiction of Incheon Port Corporation, and the Defendant has notified the non-management authority of the fact after consultation with the port management authority which manages and operates other harbor facilities pursuant to Article 15(1) of the Regulations on the Use and Use Fees of Harbor Facilities, etc. of Trade Port, etc.

2) Determination

As a matter of principle, an appeal litigation is to be filed against an administrative agency under its external name, which is the subject of an administrative disposition, etc., and is not different from that by the instruction or notification of a superior administrative agency or another administrative agency. The delegation or entrustment of authority does not mean any disposition made in the name of the delegated administrative agency under its legitimate authority, and it is merely an internal delegation or delegation of authority, and thus, an administrative agency, without disclosing the name of the original administrative agency or the representative relation, must also be the defendant against a disposition made in its name without the authority of the administrative agency under its own name, which is the title of disposition (see Supreme Court Decision 94Nu197, Jun. 14, 1994).

Therefore, as long as the defendant did the refusal of the plaintiff's second motion, the defendant's prior defense on the merits is recognized as the defendant's standing to seek the revocation of the refusal of this case.

B. As to the litigation form and disposition

1) Defendant’s defense prior to the merits

In general, in cases where free use of harbor facilities by a non-management authority is at issue, the other applicants filed a lawsuit seeking confirmation of the scope of rights under the public law with the Republic of Korea as the defendant, but the plaintiff's claim of this case is unlawful as administrative litigation is against the fact that the non-use of harbor facilities of this case is denied (the plaintiff is not a right holder to whom the right of free use of harbor facilities of this case was not recognized as a matter of course).

2) Determination

A) As to the form of lawsuit

(1) A harbor facility established by a person other than the Minister of Oceans and Fisheries (hereinafter referred to as a “non-management authority”) shall, regardless of the will of the non-management authority, naturally belong to the State or a local government pursuant to the provisions of the Act, and instead, the non-management authority shall acquire the right to use the relevant harbor facility until the total amount of the usage fees reaches the total project cost, and the period of free use is determined based on the total project cost. Thus, if the head of the local government calculates the total project cost in a manner that falls short of the standards pursuant to the Act and subordinate statutes, it shall be deemed that there is a legal unstable risk that the non-management authority may not use the facility for a period that is reduced due to the difference between the amount and the total project cost based on legitimate standards, and thus, with respect to the difference, it is necessary or appropriate means to seek confirmation of the scope of the right through a party litigation to remove it, and the most effective and appropriate means to file a lawsuit for such confirmation (see Supreme Court Decision 9Du

According to Article 15 of the Harbor Act, land and harbor facilities developed or installed through a non-management authority’s harbor project shall revert to the State upon completion of construction (main sentence of paragraph (1)), and a non-management authority may gratuitously use harbor facilities that have vested in the State pursuant to the aforesaid provisions, as prescribed by Presidential Decree, within the extent of total project cost (paragraph (4)). According to Article 19(1) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 29138, Sep. 4, 2018; hereinafter the same shall apply), total project cost under Article 15(4) of the Harbor Act refers to the total amount of research expenses, design expenses, construction expenses, compensation expenses, incidental construction expenses, value-added tax, and value-added tax, which are actually used in connection with the harbor project as of the date of confirmation of the completion of the relevant harbor project. According to Article 20(2) of the former Enforcement Decree of the Harbor Act, the period for which a non-management authority may gratuitously use the harbor facilities reverted to the State pursuant to Article 15(1).

As such, the total project cost and the period of free use are determined by harbor laws and regulations without the involvement of the agency’s disposition, and the procedure for the non-management agency to obtain confirmation upon the application of the administrative agency regarding the total project cost or the period of free use is not scheduled. Therefore, if a dispute over the total project cost or the period of free use arises, the party’s lawsuit seeking confirmation of the scope of the right will take place

(2) However, a non-management authority may gratuitously use harbor facilities belonging to the State pursuant to the main sentence of Article 15(1) of the Harbor Act within the extent of total project cost, as prescribed by Presidential Decree (Article 15(4) of the Harbor Act), and in order to compensate for the total project cost used for the construction of harbor facilities reverted to the State pursuant to Article 15(1) of the Harbor Act, it may gratuitously use other harbor facilities than the relevant harbor facilities (proviso to Article 30(4) of the Harbor Act and Article 27(1)7 of the Enforcement Decree of the Harbor Act), and in such case, the provisions on the use of harbor facilities, such as trade ports, and usage fees thereof (Article 2017-186 of the Ministry of Oceans and Fisheries’s Notice; hereinafter “instant provisions”).

Therefore, when a non-management authority intends to use a harbor facility, not a harbor facility that it was established as a harbor project and reverted to the State, the non-management authority should file an application for free use of the other harbor facility with the competent administrative authority, and if the administrative authority refuses to use it, it should be contested by an appeal

Therefore, the Defendant’s defense prior to the merits that the form of the instant lawsuit ought to be a party suit under public law is without merit.

B) In order for an administrative agency to constitute an administrative disposition that is subject to appeal litigation against a citizen’s refusal of an action of refusal against a citizen’s affirmative filing of an application, the applicant’s filing of the application must be an exercise of public authority or an equivalent administrative action; and the refusal should cause any change in the applicant’s legal relationship; and the citizen should have the right to file an application under the relevant law or sound reasoning demanding that the refusal be made (see Supreme Court Decision 2013Du2945, Jun. 15, 2017).

Of the Plaintiff’s second application, the part concerning Incheon Port is deemed to have been used without compensation, and the application’s act constitutes the exercise of public authority. Since the Plaintiff’s refusal cannot be used without compensation due to the instant refusal, it constitutes a change in the Plaintiff’s legal relationship.

According to Article 30 of the Harbor Act, the Minister of Oceans and Fisheries, a harbor facility operator, or a lessee may collect user fees from persons who use harbor facilities pursuant to paragraphs (1) and (2), but those prescribed by Presidential Decree may be fully or partially exempted from user fees (paragraph (4)), and in addition to those prescribed by this Act or an order issued under this Act, the Minister of Oceans and Fisheries, the relevant harbor facility operator, or lessee shall comply with the Ordinance of the Ministry of Oceans and Fisheries (paragraph (9)), and Article 27 (1) 7 of the former Enforcement Decree of the Harbor Act, in order to compensate for total project expenses incurred in the construction of harbor facilities reverted to the State pursuant to Article 15 (1) of the Harbor Act (excluding cases where the Port Authority uses harbor facilities under the jurisdiction of the Port Authority established pursuant to Article 4 of the Port Authority Act). According to Article 15 (1) of the former Enforcement Decree of the Harbor Act, a non-management authority shall fully or partially exempt from user fees for each harbor facility from the management and operation of another harbor facility (hereinafter referred to as "harbor management authority").

Therefore, a non-management authority that constructs harbor facilities reverted to the State pursuant to Article 15 (1) of the Harbor Act has the right to file an application under the law concerning free use of other harbor facilities.

Therefore, the refusal of this case constitutes an administrative disposition, and the defendant's objection to this part of this case is without merit.

3. Whether the refusal of this case is legitimate

A. The plaintiff's assertion

1) Article 27(1)7 of the former Enforcement Decree of the Harbor Act provides that the State or a local government should not allocate the right to free use of the harbor facilities only when the State or a local government has invested in the Corporation the right to manage harbor facilities, excluding the right to use harbor facilities under the jurisdiction of the Port Authority established under Article 4 of the Port Authority Act (hereinafter referred to as the “Corporation”).

2) The Incheon Port is divided into port facilities under the jurisdiction of the Incheon Port Authority and port facilities under the jurisdiction of the Incheon Regional Maritime Affairs and Fisheries Authority (hereinafter referred to as the “Korea National Maritime Affairs and Fisheries Authority”). The Incheon Port Authority did not invest the right to manage harbor facilities of this case in the Incheon Port Authority.

3) The concept is distinguishable from the area under the jurisdiction of the Corporation. The fact that the instant harbor facilities are located within the area under the jurisdiction of the Incheon Harbor Corporation cannot be deemed as falling under the jurisdiction of the Incheon Harbor Corporation.

4) Therefore, the instant port facilities do not constitute “harbor facilities under the jurisdiction of port authorities established pursuant to Article 4 of the Port Authority Act” under Article 27(1)7 of the former Enforcement Decree of the Harbor Act, and the instant refusal on a different premise is unlawful.

B. Determination

1) Article 27(1)7 of the former Enforcement Decree of the Harbor Act provides that a person who uses a harbor facility other than the pertinent harbor facility shall be exempted from usage fees of the harbor facility in order to compensate the total project cost used for the construction of the harbor facility reverted to the State pursuant to Article 15(1) of the Harbor Act, and excludes a person from usage fees of the harbor

Meanwhile, according to Article 16 (1) of the Harbor Act, the Minister of Oceans and Fisheries may establish a right to maintain and manage harbor facilities and to collect user fees from users of such harbor facilities (hereinafter referred to as "harbor facility management right"). According to the main sentence of Article 6 (1) of the former Port Authority Act (amended by Act No. 16213, Jan. 8, 2019; hereinafter the same), the State or a local government can invest movable property and the right to manage harbor facilities necessary for the projects of the Corporation in the Corporation, notwithstanding the State Property Act and the Public Property and Commodity Management Act. According to the results of the inquiry into the fact that the Incheon Regional Maritime Affairs and Fisheries Office did not invest the right to manage harbor facilities of this case in the Incheon Port Corporation.

2) However, in full view of the following circumstances, it is reasonable to see that the instant port facility constitutes a port facility under the jurisdiction of the Incheon Harbor Corporation. Thus, the rejection of the Plaintiff’s second application pursuant to Article 27(1)7 of the former Enforcement Decree of the Harbor Act is legitimate, and the Plaintiff’s assertion is without merit.

A) Article 4(4) of the former Port Authority Act provides that “The jurisdiction of the Corporation shall be the harbor zone of the harbor prescribed by Presidential Decree (referring to the harbor zone under Article 2(4) of the Harbor Act; hereinafter the same shall apply): Provided, That the Corporation may exercise its jurisdiction over harbor facilities, etc., other than the harbor zone prescribed by Presidential Decree, if necessary for the smooth performance of its duties.” According to the foregoing provision, it is reasonable to deem that harbor facilities within the harbor zone of the Corporation, which is the jurisdiction of the Corporation, are the harbor facilities under the jurisdiction of the Corporation. Such interpretation accords with the legislative intent of the former Port Authority enacted for the purpose of developing the harbor as a competitive marine logistics hub by enhancing expertise and efficiency in the development, management, and operation of harbor facilities, separate from the management authority of the Minister of Oceans and Fisheries.

B) According to Article 3(1) of the Harbor Act, Article 2(1) and [Attachment 1] of the former Enforcement Decree of the Harbor Act, trade ports shall be trade ports, Incheon Port Authority, Incheon Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, Busan Port Authority, and Busan Port Authority established within its respective port areas under its jurisdiction under Article 4 of the former Port Authority Act, Article 1-2(1) of the Enforcement Decree of the Port Authority Act. Pursuant to the foregoing Article 3(1) of the Harbor Act and Article 2(1) and [Attachment 1] of the former Enforcement Decree of the Harbor Act, the Busan Port Authority, Busan Port Authority, and Busan Port Authority established within its respective port areas under its jurisdiction.

Therefore, the port facilities of this case in the Incheon Port area, which is the jurisdiction of the Incheon Port Corporation, are the port facilities under the jurisdiction of the Incheon Port Corporation.

C) According to Article 30(1) of the Harbor Act, a person who intends to use a harbor facility (excluding navigational aids; hereafter the same shall apply in this Article) may use the harbor facility with permission from the Minister of Oceans and Fisheries, as prescribed by Presidential Decree, or with a person delegated or entrusted by the Minister of Oceans and Fisheries or by the Minister of Oceans and Fisheries (hereinafter referred to as "operator of a harbor facility") or with a person who has entered into a rental contract (hereinafter referred to as "contractor"), but a person who intends to use a harbor facility determined by the Minister of Oceans and Fisheries shall report the fact to the Minister of Oceans and Fisheries. According to Article 30(2) of the Harbor Act, a non-management authority which has obtained permission for a harbor project plan pursuant to the main sentence of Article 9(2) of the Harbor Act or filed a report on the use of the harbor facility pursuant to Article 10(2) or (4) shall be deemed to have obtained permission or approval for a harbor facility within the scope of the implementation plan for the harbor project. According to Article 30(4) of the Harbor Act, the Minister of Oceans and Fisheries, or lessee may fully exempt user fees from persons prescribed by Presidential Decree.

According to Article 30 of the former Port Authority Act, the Corporation may collect user fees or rents from persons who intend to use or rent harbor facilities managed by the Corporation (the forepart of paragraph (1)), and may fully or partially exempt user fees under paragraph (1) for matters prescribed by Presidential Decree, such as cases where such facilities are used for administrative purposes of the State or local governments (paragraph (2)).

Comparing to the reasons for exemption from user fees for port facilities under each subparagraph of Article 27(1) of the Enforcement Decree of the former Harbor Act, the reasons for exemption from user fees for port facilities under each subparagraph of Article 14(1) of the Enforcement Decree of the Port Authority Act are almost similar

A person shall be appointed.

A person shall be appointed.

Therefore, since the Minister of Oceans and Fisheries has the right to collect user fees from users of the harbor facilities managed by the Corporation, and the right to collect user fees from users of the harbor facilities managed by the Corporation is vested in the Corporation, a person who executes the harbor projects within the jurisdiction of the Minister of Oceans and Fisheries (other than the subordinate port, Incheon port, Ulsan port, leisure port, and mining port) shall be allowed to use the harbor facilities as well as other harbor facilities within the jurisdiction of the Minister of Oceans and Fisheries free of charge, and a person who executes the harbor projects within the jurisdiction of the Corporation shall be allowed to use the harbor facilities installed by him/her free of charge as well as other harbor facilities within the jurisdiction of the Corporation, and Article 27(1)7 of the former Enforcement Decree of the Harbor Act and Article 14(1)8 of the Enforcement Decree of

D) Meanwhile, according to the results of the fact-finding, the Incheon Office appears to have settled the Plaintiff’s royalty, such as annual exclusive use fee following the acceptance of the report on free use of the instant harbor facilities. However, it is reasonable to deem that this is due to the Plaintiff’s failure to complete the period and settlement related to free use following the Plaintiff’s implementation of the instant harbor facilities. Accordingly, it cannot be said that the instant harbor facilities are excluded from the port facilities under the jurisdiction of the Incheon Harbor Corporation, or their management rights are located in the Incheon Office.

E) Ultimately, the Plaintiff, who performed the instant construction works within the jurisdiction of the Minister of Oceans and Fisheries, not within the jurisdiction of the Incheon Harbor Corporation, cannot be deemed to constitute a requirement for free use of the instant harbor facilities within the jurisdiction of the Incheon Harbor Corporation pursuant to Article 27(1)7 of the former Enforcement Decree of the Harbor Act.

4. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.

The presiding judge, the senior judge;

Judges' Branch Office Counter

Judges Choi Young-young

1) Although the Plaintiff stated “pagyeong Port”, the Plaintiff appears to be a clerical error.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.