[1] In a case where a subordinate statute delegates a specific matter to a subordinate statute, the method of determining the scope of delegation by the parent law or determining whether the subordinate statute complies with the limits of delegation / In such a case, whether the pertinent law or superior statute ought to be able to predict the outline of the contents to be stipulated in the delegation order by the pertinent law or superior statute (affirmative), and the method

[2] Whether the part of the facilities of the water area among the facilities subject to the collection of cargo entry and departure fees under Article 3 (1) 1 (b) and 3 (2) [Attachment Table 1] of the "Regulations on the Detailed Classification, etc. of Fees and Rent collected by the Harbor Corporation", which included the facilities of the water area such as sea routes or anchorages in the facilities subject to the collection of cargo entry and departure fees exceeds the limit of the delegated legislation (negative)

[1] In a case where a subordinate statute delegates a certain matter to a subordinate statute, determination of the scope of delegation by the mother law or whether the subordinate statute complies with the limits of delegation should be made by comprehensively considering the legislative purpose and content of the pertinent provision, the structure of the provision, the relationship with other provisions, etc., along with whether the subordinate statute must be governed by the principle of parliamentary reservation, as an essential matter that must be governed by a formal law. Even though the delegation provision itself clearly states the limits of delegation by using terms with which accurate contents can be known, whether the delegation provision goes beyond the limits of literal meaning, or whether the contents of the subordinate statute fall within the scope of prediction of delegation by the mother law itself, or whether the contents of the subordinate statute can be evaluated as a new legislation beyond the stage of concreteizing the delegation by expanding or reducing the scope beyond the meaning of the terms used in the delegation provision.

The specific scope of delegation differs depending on the type and nature of the object to be regulated, so it is not possible to set uniform standards, but at least, since the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the delegation order, any person can predict the outline of the contents to be stipulated in the delegation order by the relevant law or superior law. In such cases, the predictability of the delegation clause shall not be determined with only one delegation clause, but shall be determined with the overall system, purpose and purpose of the law to which the delegation clause belongs, the form and content of the delegation clause, and related laws and regulations in an organic and systematic manner, and further, it is necessary to examine the specific and individually

[2] Examining the details of 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 Decree of the Port Authority Act, and the system, in light of relevant legal principles as to the characteristics of domestic port operation policy and port facility usage fees system, and operating status, etc., the following can be sufficiently predicted: “Detailed Regulations on the Classification, etc. of Fees and Rent collected by the Port Authority (Notice of the Ministry of Oceans and Fisheries No. 2013-28, May 6, 2013)” (Notice of the Ministry of Oceans and Fisheries No. 2013-28, May 6, 2013) to be included in a water zone facility, such as sea routes or anchorage, at least in a facility subject to collection of cargo entry fees. Accordingly, the part concerning water zone facilities among the facilities subject to collection of cargo entry fees under Article 3(1)1(b) and 1 [Attachment 1] of the same.

[1] Articles 75 and 95 of the Constitution / [2] 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

[1] Supreme Court en banc Decision 2012Du23808 Decided August 20, 2015 (Gong2015Ha, 1419), Supreme Court Decision 2016Du35199 Decided January 12, 2017 (Gong2017Sang, 385)

South East East Power Development Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Shin Byung- Line et al., Counsel for the defendant-appellant)

Incheon Harbor Corporation (Law Firm Sejong, et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu36326 decided February 3, 2017

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 sells electricity to the Korea Electric Power Corporation using coal-generating technology, and is using ○○ Power Plant Port Facility (hereinafter “instant harbor facility”) located in Incheon Cheongjin-gun ( Address omitted) (hereinafter “○○”). On July 11, 2005, the Defendant was established under the Port Authority Act, and managed the instant harbor facilities by being transferred by the Incheon Regional Maritime Affairs and Fisheries Office for the development, management, and operation of the Incheon Port Facility.

(2) On April 16, 2014, the Defendant rendered a disposition to the Plaintiff imposing KRW 12,261,690 on the Plaintiff (hereinafter “instant disposition”) charges for the use of harbor facilities (franchising freight) applying the Incheon Port rate in accordance with the “Rules on the Use and Use of Inncheon Port Facilities” (Article 242 of the Incheon Port Construction Work Regulations, January 23, 2014; hereinafter “instant provisions”).

B. The Plaintiff appealed and 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) If the contents of the relevant statutes are systematically interpreted, it is reasonable to deem that the fee for the use of the harbor facilities is imposed only when the harbor facilities are used to load and load cargo. As such, “the portion of the fee for the use of the harbor facilities including the water facilities within the facility subject to the collection of the fee for the arrival and departure of cargo among the standards for calculating the rates under the instant provisions

(2) The use of sea lanes or anchorages must be deemed to refer to the use of ships themselves as a passage to and from their own, or for the use of ships themselves for anchorages. Even though the ultimate purpose of the use of sea lanes or anchorages lies in the quantity and loading of cargo, it cannot be deemed that the cargo is not a ship but a ship but a ship uses sea lanes or anchorages.

(3) Of the charges for the use of harbor facilities, the charges for the entry into and departure from port facilities are charged on the basis of harbor facilities used in the entry into and departure from port facilities. However, since the Harbor Act and Port Authority do not provide for exceptions that the charges for the entry into and departure from port facilities may be charged to shippers who do not directly use the harbor facilities, it is reasonable to interpret that the charges for the use of the water facilities, such as sea lanes or anchorages, can be charged only to the owners

(4) Inasmuch as cargo is used only through the process of loading and unloading at a wharf, etc., whether to use the harbor facilities related to the volume and volume should be the basis for bearing the cost of the cargo. Nevertheless, it is difficult to deem that imposing the cost of the cargo upon whether the cargo used a sea route or anchorage, etc. without regard to whether the cargo used the port facilities related to loading and unloading, satisfying the relation between profit and bearing the cost of the cargo.

(5) Of the water zone facilities, sea lanes and ship owners set the facility subject to the collection of vessel entry and departure charges, and despite the provisions as the facility subject to the collection of anchorage charges, they impose double charges on the facility subject to the collection of cargo entry and departure charges for each of the above water zone facilities.

(6) Even if the cargo is indirectly used for a marina route or anchorage, there is sufficient room to view that the cost of the vessel’s navigation, including the space at which the cargo is loaded, has already been collected, as the cost of the vessel’s navigation, including the space at which the cargo is loaded, is already collected.

C. We examine the legal basis of the instant disposition and the issues of the instant case.

(1) The Port Authority may collect fees from those who intend to use port facilities managed by the Port Authority, and the type of fees that the Port Authority may collect in such cases shall be determined by Presidential Decree (Article 30(1)). Accordingly, the Enforcement Decree of the Port Authority provides that the type of fees for use shall be determined as vessel charges, freight charges, passenger terminal charges, and exclusive usage charges (Article 13(1)1), and that matters necessary for the detailed classification and details of the fees that the Port Authority may collect shall be determined and publicly notified by the Minister of Oceans and Fisheries (Article 13(2)). The provision on the detailed classification, etc. of the fees for use and rents collected by the Port Authority (Article 2013-28 of the Ministry of Oceans and Fisheries, and Article 2013-28 of the Ministry of Oceans and Fisheries; hereinafter “the detailed notice of this case”) shall be subdivided into “cargo charges” and “cargo charges” [Article 3(1)1(b) [Article 13(1)1(b)] of the Enforcement Decree of the Port of the Port Authority.

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 documents stating the type of user fees, target facilities to be collected, rates, standards for collection, applicable method, etc. to the Minister of Oceans and Fisheries (Article 12(1) of the Enforcement Rule of the Port Authority Act). Accordingly, the instant provision established by the Defendant (Article 4(1) [Attachment 1] 1.

Therefore, the legal basis of 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 3(2) [Attachment 1] of the instant detailed notice concerning the waters facilities from among the facilities subject to collection of cargo entry fees and departure fees (hereinafter “instant detailed notice clause”) and Article 4(1) [Attachment 1] of the instant provision.

(2) The part pointed out by the court below as the illegal ground for the disposition of this case is not the rate of the fee for cargo entry and departure, but the facility of waters, such as navigation routes and anchorages, etc., is included in the facility subject to the collection of the fee for cargo entry and departure. In order to determine whether "the part of the calculation basis for the rate of the provision of this case, which included the facility of waters in the facility subject to the collection of the fee for cargo entry and departure, is illegal and invalid, first of all, the determination of whether the detailed notice provision of this case that included the facility of waters in the facility subject

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 delegation delegated by the parent 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 beyond the meaning of the terms used in the delegation provision (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 delegation clause, but shall be determined with the overall system, purpose and purpose of the law to which the delegation clause belongs, the form and content of the delegation clause, and related laws and regulations comprehensively and systematically. Furthermore, it is necessary to examine the specific and individually depending on the nature of the subject matter to be regulated (see Supreme Court Decision 2016Du35199, Jan. 12,

B. Examining the above provisions of the Port Authority Act, the Enforcement Rule, the Enforcement Rule, and the structure, in light of the characteristics of the domestic port operation policy and the port facility usage fee system and the operating status, etc., it can be sufficiently predicted that the facilities subject to the collection of cargo entry fees to be stipulated in the instant detailed publication provision include water-water facility, such as sea routes or anchorages, at least. Therefore, the instant detailed publication provision may not be deemed to have exceeded the bounds of delegated legislation by deviating from the scope delegated by the Port Authority. The specific reasons are as follows.

(1) Port facilities are classified into multiple facilities with different uses. Whether a certain type of harbor facilities among port facilities is to be determined as a facility subject to the collection of user fees, and who is to bear the user fees, etc. may be changed according to changes in the economic conditions or changes in port and maritime policies, etc. Furthermore, considering various factors, such as harbor operation policies, expenses incurred in installing port facilities, expenses incurred in installing port facilities, the type of treated cargo or flag vessels, cost recovery aspects and public aspect, and external competitiveness of domestic ports, it is difficult to determine the facility subject to the collection of user fees by law in detail.

(2) Our port facility usage fees are not accurately linked between each cost recovery facility and each usage fee item, but are based on the fare system that allocates each of the costs for the management and operation of the water facility to the owner of the vessel and the owner of the vessel under low-rate policy to collect some of the costs for the management and operation of the water facility. Accordingly, instead of bearing the costs for the use of the water facility directly by the owner of the vessel, the fare has been determined in such a way that the cost for the use of the water facility

(3) The main function of a harbor is two parts, which ensure the safe entry of a vessel into a harbor and anchor and load and unload cargo within the harbor. The legislative intent of the Harbor Act is to impose the vessel owner the cost of entering and leaving a port in the case of the former, and to impose the user fee for using the harbor facilities in accordance with the principle of the beneficiary’s burden on the cost of installing the harbor facilities in the case of the latter (see Supreme Court en banc Decision 78Nu407, Aug. 26, 1980). As such, the purpose of the harbor facility usage fee system is to impose the user fee on a person who gains special benefits due to the use of the harbor facilities in question.

The Port Authority may collect user fees from those who intend to use harbor facilities (Article 30(1) of the Port Authority Act); “harbor facilities” refers to basic facilities, functional facilities, support facilities, harbor-friendly water facilities, and facilities inside any harbor hinterland complex designated and publicly notified by the Minister of Oceans and Fisheries within the harbor zone (Article 2 subparag. 5 of the Harbor Act). “harbor” refers to a place where facilities for ship entry, embarkation and disembarkation, loading and unloading, loading, unloading, storing, handling cargo, marine-friendly water activities, and other facilities for creating added value, such as assembling, processing, packing, and manufacturing of cargo (Article 2 subparag. 1 of the Harbor Act). “Air route” refers to a waterway designated and publicly notified by the Port Authority in accordance with the Act on the Arrival, Departure, etc. of Ships to use as a passage of ships (Article 2 subparag. 11 of the Act on the Arrival, Departure, etc. of Ships), and “stoping” refers to a place where ships may anchor (Article 2 subparag. 7 of the same Act).

In most cases, sea transportation via the ship is almost all the part of the Korean transportation of cargo. Sea routes are required to ensure the sufficient width and depth for safe passage of vessels. Ships are mainly using sea routes for the transportation of cargo, and therefore the maintenance of sea routes ultimately contribute to securing the common safety of ships and cargo. If cargo is loaded, additional dredging may be required to maintain the safety depth according to the loading tonnage of cargo. Thus, the degree and mode of using the sea facilities is different. This also applies to a ship loaded with cargo and a ship not so, which is a facility of an area other than a sea route, such as anchorage.

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 derives special benefits from the use of harbor facilities in accordance with the principle of beneficiary burden. Benefits obtained by using the sea route, etc. for the purpose of loading and unloading cargo can be seen not only as the owner of the ship but also as the owner who is the disposal authority of the cargo. If so, it is difficult to deem that imposing not only the owner of the ship but also the owner of the ship using the sea route, etc. for the purpose of loading and unloading the cargo to be contrary to the purpose of delegation under the Port Act and subordinate statutes

(4) If an average shipper, including the Plaintiff, is the owner, it can be sufficiently predicted that the facility subject to the collection of the cost of cargo entry and departure will include water-based facilities such as service routes.

3. Whether the disposition of this case is unlawful

The phrase “the part that included the water area facilities in the facility subject to collection of cargo entry fees,” among the criteria for calculating the rates of the instant provision, is lawful, and the instant disposition based on the instant detailed notice provision, should be deemed lawful.

Nevertheless, the lower court determined that the instant disposition was unlawful on the ground that “the portion of the standard for calculating the rate of the provision of this case, which included the water facilities in the facilities subject to the collection of cargo entry fees, deviates from the delegation scope of superior statutes. In so doing, the lower court erred by misapprehending the legal doctrine on the limitation of delegated legislation, thereby adversely affecting the conclusion of

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 (Presiding Justice)