(영문) 창원지방법원 2015.11.24.선고 2015구합422 판결

The Defendant’s disposition of refusal to grant permission for the exclusive use of harbor facilities against the Plaintiff on December 30, 2014 is revoked. The Defendant’s disposition of refusal to grant permission for the exclusive use of harbor facilities against the Intervenor joining the Defendant on December 1, 2014, revoked the part of 20,476.94 square meters and 9,796.2 of the exclusive use permission for harbor facilities, which is the 20,0

Reasons

1. Details of the disposition;

A. On September 5, 2002, the Defendant Intervenor obtained permission from the Defendant for the execution of a non-management authority’s harbor project on Dec. 29, 2006 to construct a distribution center on the land after the port 5 parts of the Msan Port No. 5 of the Masan-si, Sungwon-si. The Defendant Intervenor acquired the right of free use of the instant harbor facilities within the scope of the project cost on February 28, 2007, after the ownership of the port facilities developed by the said construction (hereinafter “the instant harbor facilities”) was reverted to the State pursuant to Article 15(4) and the main text of Article 15(1) of the Harbor Act.

B. On December 13, 2007, the Plaintiff entered into a contract with Samsung Heavy Industries Co., Ltd. (hereinafter “Ssung Heavy Industries”) for the operation of steel storage facilities with the content of loading, unloading, storage, sorting, and shipping of cargo that Samsung Heavy Industries requests the Plaintiff in the instant harbor facilities. On March 10, 2008, the Plaintiff entered into a contract with the Intervenor joining the Defendant for steel storage and sorting (hereinafter “instant contract”). The Plaintiff entered into a loan agreement with the Intervenor for steel storage and sorting (hereinafter “instant loan agreement”). The main contents are as follows.

Article 1 [Purpose of Contract] The purpose of this Agreement is to clarify the rights and obligations between the Plaintiff and the Defendant’s Intervenor in relation to the custody of steel materials requested by the Plaintiff from Samsung Heavy Industries in the site of the instant harbor facilities (the total area of 30,273 square meters, the site designated by the Korea Customs Service as a bonded area, and the site for which the Defendant’s Intervenor has exclusive right to use; hereinafter referred to as the “logistics Center”). The purpose of this Agreement is to clarify the rights and obligations between the Plaintiff and the Defendant’s Intervenors in relation to the custody of steel materials requested from Samsung Heavy Industries.Article 2 / [Period of Contract]

1. The period of the contract shall be 202,12,31.15 years. Article 3 (Keeping Fees and Screening Fees) 1. The amount of storage fees shall be 2,500 won/metric tons (value-added Tax Separate), and the selection fees shall be 2,000 won/metrics (value-added Tax Separate) shall be borne by the supplementary intervenor. 4. The storage fees shall be adjusted in proportion to the price index of the National Statistical Office among the supplementary intervenors every three years after the expiration of 209, 1.3 years from the date of this contract to the supplementary intervenor. The supplementary intervenor shall not be obliged to use the supplementary facilities in proportion to the amount of the additional facilities owned by the plaintiff and the intervenor's share of the amount of storage fees and the supplementary facilities owned by the plaintiff and the intervenor every year after the expiration of 600,000 tons of gross tonnage, and the supplementary facilities shall not be installed in proportion to the amount of the supplementary facilities owned by the plaintiff and the intervenor every year after the expiration of 250,00,00 tons of gross tonnage.

제5조[항만시설물]1. 원고는 강재보관으로 인하여 항만시설(휀스 아스콘 배수시설)에 손상이 있을 경우 원상복구에 소요되는 비용을 피고 보조참가인에게 지불한다.2. 원고는 철골구조물 및 건축물의 기초 설치로 인한 아스콘 포장 훼손으로 피고 보조참가인이 입는 손실을 보상한다.제6조 [작업수행 및 제반비용]1. 물류센터 내의 전기시설 관리는 피고 보조참가인이 하며 사용전기료는 원고가 부담한다.제7조(보험]본 계약기간 동안 피고 보조참가인이 물류센터에 대한 종합 책임보험 및 화재보험에 가입한다.<대여금 약정서>* 대여인: 원고* 차입인: 피고* 연대보증인: B(피고 보조참가인의 대표이사)제1조 [대여금] 금 사십억 원정(₩4,000,000,000원)제2조 [대여목적] 원고와 피고 보조참가인 사이에 2008. 3. (공란), 체결된 물류센터 강재보관 선별 업무 계약 제4조에 따른 강재적치장 내 철구조물 설치대금제3조 [대여금 상환기일 및 상환방법 ]가. 상환기일: 2022. 12. 31.단, 사정에 따라 금액, 분할 및 날짜를 합의하여 변경할 수 있다.나. 상환방법: 상기 제3조 가항에 의거 금 (공란) 원을 매년 12.31.에 균등상환 한다.제5조 [시설사용료의 지급 및 청구]

A. The Plaintiff shall use the facilities of the Defendant Intervenor and pay the fees for the use of the facilities to the Defendant Intervenor by the due date for the repayment of the fees for the use of the facilities.Article 6 [Offset against the principal and interest of the loans and the fees for the use of facilities] of the Plaintiff (including interest) shall be offset against the fees for the use of the facilities of the Defendant Intervenor

D. According to the above contract, the Plaintiff had an employee in the instant harbor facilities, and managed and supervised the entry, removal, etc. of steel materials requested by Samsung Heavy Industries, and designated SP as a steel screening company pursuant to the proviso of Article 3(7) of the instant contract, and SPM was in charge of the steel screening business in the instant harbor facilities.

E. The Plaintiff takes a heavy interest in relation to the instant contract. Considering that there was a dispute, such as the Plaintiff’s failure to pay the storage fees to the Defendant’s Intervenor, the Defendant’s Intervenor claimed payment of the storage fees against the Plaintiff as Seoul Central District Court 2012Gahap518090. Accordingly, the Plaintiff asserted that the instant contract constitutes an unfair legal act and is null and void, and that the lease agreement is exercised as to the instant contract, but the Plaintiff asserted that the lease agreement is null and void. However, the judgment ordering the Plaintiff to pay the storage fees on June 13, 2013, which became final and conclusive through the appellate court (Seoul High Court 2013Na257), and the final appeal (Supreme Court 2014Da216072) and the final appeal (Supreme Court 2014Da216072).

F. Meanwhile, pursuant to Article 4 of the instant contract, steel structure for the storage and selection of steel materials (hereinafter “the instant structure”) was installed. The Plaintiff asserted the invalidity of the instant contract against the Defendant Intervenor as Seoul Central District Court 2012 Gohap 93140, and sought confirmation of ownership of the instant structure, but the Plaintiff was sentenced to a judgment dismissing the Plaintiff’s claim on August 1, 2013, and the said judgment became final and conclusive (Seoul High Court 201345395) through the appellate court (Seoul High Court 2014Da46709) and the final appeal (Supreme Court 2014Da46709).

G. On March 11, 2011, when the period of free use of the instant harbor facilities expires on May 3, 201, the Defendant Intervenor obtained permission for exclusive use of the instant harbor facilities from the Defendant on March 11, 201, and finally obtained permission for exclusive use with the content that the period of permission is renewed several times thereafter, and finally obtained permission for exclusive use from the Defendant on December 1, 2014 (hereinafter referred to as “relevant disposition”), and the Defendant obtained permission for exclusive use from the Defendant on January 1, 2015 to December 31, 2015 (hereinafter referred to as “the instant permission”). The “the Defendant Intervenor is prohibited from allowing another person to use the permitted harbor facilities.”

H. On December 15, 2014, the Plaintiff filed an application for permission for the exclusive use of the instant campground (hereinafter referred to as the “application of this case”) with the Defendant on December 30, 2014, stating that “the Plaintiff actually occupied and used the part of the registry site 20,476.94m and the part of the registry site 9,796.2m (hereinafter referred to as “the instant permanent site, etc.”) from among the instant harbor facilities.” However, the Defendant rendered a disposition rejecting the instant application against the Plaintiff on December 30, 2014 on the ground that the Defendant’s supplementary intervenor obtained the exclusive use permission for the instant permanent site, etc. (hereinafter referred to as “the instant disposition”).

[Ground of recognition] The facts without dispute, Gap evidence 1 through 7, Eul evidence 1 to 15, Eul evidence 1 to 6, Eul evidence 1 to 6 (including the number of branch numbers; hereinafter the same shall apply), Eul's witness Eul's witness's partial testimony, and the purport of whole pleadings

2. Determination on this safety defense

A. The defendant assistant intervenor's assertion

1) In cases where there is a right to file an application under the law or sound reasoning, the rejection of the application constitutes an administrative disposition subject to an appeal litigation. However, there is no legal basis that anyone is entitled to file an application for exclusive use permission with respect to harbor facilities, and the Plaintiff does not have the right to file the instant application. Therefore, the instant disposition that the Defendant rejected the instant application is not an administrative disposition, but a standing to file

2) The Defendant Intervenor already used the instant harbor facilities as the pertinent disposition before the instant application was filed, and thus, there is no benefit to seek revocation of the instant disposition.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 30(1) of the Harbor Act provides that a person who intends to use a harbor facility may use the harbor facility with permission from the Minister of Maritime Affairs and Fisheries. As such, anyone who intends to use the harbor facility has the right to apply for an exclusive use permit, and the Plaintiff filed the instant application to use the site of this case. Thus, the instant disposition rejecting the instant application constitutes an administrative disposition.

2) In addition, even though a person who did not receive permission, etc. in the so-called border relationship is not the other party to the disposition such as permission, it is considered that he/she has the standing to seek revocation of the disposition such as permission, etc. made against the person who applied for a beneficial administrative disposition, such as permission, etc., can only be determined by non-permission, etc. to the other party in competition with each other.

However, the permission for exclusive use of harbor facilities filed by the Plaintiff and the Defendant’s Intervenor for the exclusive use of harbor facilities overlaps with the instant camping site, etc., and the Defendant cannot give one of the Plaintiff and the Defendant’s Intervenor to permit exclusive use, and the instant application cannot be rejected if the Defendant granted a permit for exclusive use of the instant harbor facilities to the Defendant’s Intervenor. Thus, barring special circumstances where the possibility of acceptance of the instant application is excluded from the beginning due to an obvious legal trouble in the context of this light-based relationship, the Plaintiff shall be deemed to have standing to sue to seek revocation of the instant disposition. Since the instant application was rejected due to the pertinent disposition, the Plaintiff shall be deemed to have legal interest to seek revocation of the instant disposition.

Therefore, the above argument by the Defendant’s assistant intervenor is without merit (the Defendant’s assistant intervenor claimed that it is unlawful to seek revocation of the pertinent dispositions against the entire harbor facilities of this case for which the Defendant’s assistant intervenor obtained exclusive permission, even though the Plaintiff filed an application for permission only for the instant site, etc., but the Plaintiff modified the purport of the claim to seek revocation of the instant site, etc. among the dispositions related to this case, the Defendant’s assistant intervenor’s assertion is without merit).

3. Whether the instant disposition and related dispositions are legitimate

A. The plaintiff's assertion

1) Considering the following circumstances, the Defendant’s assistant intervenor leased the instant camping site, etc. to the Plaintiff and practically uses the instant camping site, etc., the Defendant’s assistant intervenor violated the instant condition of permission. Considering such circumstances, maintaining the Defendant’s exclusive use permit regarding the instant camping site, etc. is contrary to the nature of the public materials with harbor facilities, and thus, the instant disposition taken out by deviation from and abuse of discretionary authority should be revoked. The Defendant should take a disposition to permit the instant application to the Plaintiff, who is the actual user of the instant camping site, etc. (hereinafter “the first assertion”).

A) The distribution base business plan submitted by the Defendant’s Intervenor to the Defendant for the application of the application for the execution of harbor works for the construction of the instant structure (hereinafter “instant construction”). However, the Defendant’s Intervenor submitted a false business plan, such as: (a) the Plaintiff’s existence of the Plaintiff, who is the actual user of the instant field yard, etc., and the Plaintiff’s use of the instant site by leasing it to the Plaintiff; and (b) the Defendant’s Intervenor submitted a false business plan with respect to various items, such as transport, discharge, storage, load, etc. concerning the scope of work; but (c) the Plaintiff’s use of the instant site by leasing it to the Plaintiff. In addition, the Defendant’s Intervenor filed an application with the Defendant for the implementation of the instant construction project with false content on various items, such as: (a) the Plaintiff’s use of the instant site, etc., and the Plaintiff’s use of the instant site.

B) Even though the Minister of Land, Transport and Maritime Affairs confirmed who actually uses and manages the instant camping site, etc. to determine whether the Defendant violated the terms and conditions of permission, the Defendant neglected his/her duty, such as failing to ask the Plaintiff, who is the actual user of the instant camping site, etc. and failing to visit the instant camping site.

C) The contract of this case seems to be external deposit contract. However, considering that the plaintiff raised approximately 11 billion won and made investment in facilities related to the camping site, etc., and the defendant's assistant participant did not make an investment in facilities at all (the most related to the loan to the defendant's assistant participant), ② the on-site management, supervision, and inspection conducted by the plaintiff's employee with respect to the creation of the camping site, etc., and the defendant's assistant participant did not participate at all. ③ If the contract of this case is a deposit contract, the defendant assistant participant should take charge of the storage, screening, entry, and management conducted with respect to the steel materials which the defendant's assistant participant received from the plaintiff, and it is necessary for the plaintiff to pay the rent of this case to the defendant's assistant 0,000 won to the defendant's assistant 1,000 won, and the plaintiff paid the rent of this case to the defendant's assistant 8,000,000 won to the defendant's assistant 1,000,000 won.

D) The Defendant Intervenor extended the period of free use by failing to report usage fees for the instant site, etc. collected from the Plaintiff at an amount considered in determining the period of free use of the instant port facilities. The Defendant Intervenor paid approximately KRW 2.78 billion to the Defendant as usage fees for the instant site, etc. from the period of free use to 2014, while the Defendant Intervenor paid KRW 2.78 billion to the Defendant as usage fees for the instant site, etc., on the other hand, received more than KRW 8.8 billion from the Plaintiff as storage and screening expenses, and accordingly, the Plaintiff did not dismiss the Plaintiff every year.

2) A legal entity has the legal capacity only to the extent of its original purpose. Since the Defendant’s Intervenor added other storage business to the business purpose on January 8, 2015, at the time of the pertinent disposition, the Defendant did not have the legal capacity to engage in the business of storing lectures in the field of the instant site, etc. Nevertheless, since the Defendant issued the pertinent disposition to the Defendant’s Intervenor who did not have the legal capacity as above, the pertinent disposition of the instant case was unlawful (hereinafter “the second assertion”).

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

A) In full view of the health issues that were inappropriate for Defendant 2 to obtain permission for exclusive use of harbor facilities or to maintain them with respect to the camping site, etc. by Defendant 2’s leasing out of the instant camping site to the Plaintiff, etc., the Intervenor: (a) stated that Defendant 2 was an assistant to the Plaintiff on February 14, 2008, and that the Intervenor sent the instant construction project plan to Defendant 2 for KRW 00,000,000,000 for KRW 10,000,000,000 for KRW 7,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

B) However, in light of the following circumstances, which can be acknowledged by comprehensively taking account of the evidence mentioned above, Eul's evidence, Eul's evidence Nos. 16 through 24, Eul's evidence Nos. 7 through 22, and the overall purport of pleadings, it is difficult to deem the contract of this case as a lease agreement only with the facts acknowledged earlier. Rather, it is difficult to deem that the contract of this case cannot be deemed as a lease agreement, and the defendant's assistant intervenor violated the terms and conditions of permission since the contract of this case cannot be deemed as having leased the site Nos. 16, etc. to the plaintiff, and it is difficult to see that the defendant's disposition against the defendant'

(1) Under Article 10(2)1 of the former Enforcement Decree of the Harbor Act (wholly amended by Presidential Decree No. 20592, Jan. 31, 2008; hereinafter referred to as the "former Enforcement Decree of the Harbor Act"), the business plan submitted to the Defendant by the Intervenor joining the Defendant to this Defendant does not necessarily have to be specified and confirmed from the beginning. Thus, the application for permission for the instant construction cannot be deemed unlawful on the ground that the Plaintiff omitted the Samsung Heavy Industries in the business plan, and it is difficult to deem that the Plaintiff prepared a false business plan to conceal the repair of Samsung Heavy Industries. In addition, according to Article 10(2)3 and (4) of the former Enforcement Decree of the Harbor Act and Article 11-2(1) of the former Enforcement Decree of the Harbor Act (Notice of Ministry of Oceans and Fisheries, No. 2006-38, Jan. 31, 2008; hereinafter referred to as the "former Enforcement Decree of the Harbor Act"), it is necessary to assess the capacity to implement the instant construction project.

It is difficult to see that it had the intention of deceiving the defendant from the beginning by raising funds with borrowed money.

(2) The Defendant confirmed that the Intervenor appointed an electrical safety supervisor in the instant field, etc., paid electric power plant repair fees, and the Defendant’s assistant participant paid the fees for storage and screening in the instant field, etc. in order to verify whether the Intervenor violated the instant condition of permission by the Minister of Land, Transport and Maritime Affairs, after receiving an official notice from the Minister of Land, Transport and Maritime Affairs to confirm whether the actual user of the instant field yard, etc. was the actual user of the instant field yard, etc., and confirmed that the Intervenor was negligent in confirming the violation of the instant condition of permission. Based on this, the Defendant determined that the Intervenor was the Defendant’s assistant participant who received the reply from the Minister of Land, Transport and Maritime Affairs to determine that the Defendant’s assistant participant did not violate the instant condition of permission. In light of such circumstances, the Defendant cannot be deemed to have neglected to confirm the violation of the instant condition of permission.

(3) As long as the legal nature of the instant contract is acknowledged to be genuinely established, the court should recognize the existence and content of the instant agreement as stated in the instant disposal document, insofar as it is clear and acceptable to deny the entries therein (see, e.g., Supreme Court Decision 2011Da105867, Apr. 26, 2012). The facts acknowledged in the instant civil case are significant evidence to the extent that the Plaintiff would have purchased an auxiliary storage charge for the instant case, which is not an incidental storage charge nor an auxiliary storage charge for the instant case. (1) The instant agreement stipulates that the Plaintiff would have concluded a contract regarding the storage of steel products requested from Samsung Heavy Industries, and that it would have concluded an agreement regarding the storage charge and separate storage charge for the instant case, which is not an incidental storage charge for the instant case, and that the Plaintiff would have been directly paid to the Intervenor for the storage of the instant case, and that the amount of the storage charge and separate storage charge for the instant case would have been determined by the size of the instant case.

(4) The Plaintiff received KRW 3,00 per ton from Samsung Heavy Industries, and obtained profits from the difference. The Plaintiff paid KRW 2,000 per ton to the Defendant’s Intervenor. From 2008 to 2014, the profits amounting to approximately KRW 2.8 billion. The Plaintiff’s operating profits amounting to KRW 17.8 billion in 2012, KRW 14.8 billion in 2013, and KRW 11.7 billion in 2014 in 2014. (5) The Defendant Intervenor acquired the right to use the instant harbor facilities by donation to the State on February 28, 2007, after the period of free use expires, and the period of exclusive use for the instant harbor facilities was renewed on a yearly basis, barring any special circumstances. Thus, the Defendant Intervenor may be deemed to have the right to renew the permission period, barring special circumstances.

2) Judgment on the second argument

The legal capacity of a company is limited by the law that served as the basis for the incorporation of the company and the purpose of the articles of incorporation of the company, but an act within the scope of the purpose is not limited to the purpose itself as stipulated in the articles of incorporation itself, but also includes, directly and indirectly, necessary acts in the performance of that purpose (Supreme Court Decision 2009Da63236 Decided December 10, 209).

In light of such legal principles, the following circumstances can be acknowledged by comprehensively taking into account whether the Intervenor was capable of having the right to the compulsory storage and selective service at the time of the instant disposition, and the overall purport of evidence and arguments as seen earlier. ① Logistics service business is included in the articles of incorporation established at the time of the establishment of the Intervenor’s Intervenor’s establishment. According to Article 2(1)1 of the Framework Act on Logistics Policies, logistics goods are transported until the goods are procured and produced from the supplier to the user or recovered and disposed of from the consumer. They refer to storage, loading, unloading, etc., and the processing, assembly, classification, repair, packing, labelling, trademark attachment, sale, information and communications, etc., which create value added thereto; ② The strong materials handled and stored in the open container of this case, etc. are conducted through the process of maritime transportation, unloading, loading, unloading, harbor transport, unloading and maritime transport, etc., and thus, it is reasonable to deem that the Intervenor’s act constitutes a series of acts related to the Defendant’s exclusive use permission and disposal of the instant goods.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed, and it is so decided as per Disposition.