(영문) 서울고등법원 2018.11.6.선고 2018누39777 판결

As to port facilities listed in the annexed Form 1 of the judgment of the court of first instance, the Plaintiff confirms that he/she has the right to gratuitously use the harbor facilities exceeding KRW 187,735,81,266, and up to KRW 207,240,670,521.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

Reasons

1. Quotation of the first instance judgment

The reasoning of the court’s reasoning is as follows, and the reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main text of

○ Under the fifth sentence of the first instance judgment, the following shall be added to the 'detailed supervision' (this refers to verifying whether construction works are carried out in accordance with design documents and other related documents and related Acts and subordinate statutes).

The following is "the last sentence of the 11th sentence of the judgment of the court of first instance," and is "the total project cost is calculated on the basis of the confirmation date of completion, and the total project cost at the time of actual completion claimed by the defendant cannot be determined accordingly. Accordingly, the specific scope of the right to use harbor facilities cannot be determined. There are final inspections, supplementation, and various administrative affairs even after actual completion, and the free use of harbor facilities can not be immediately possible on the date of actual completion.

The following is added to "the right naturally recognized within the scope of the total project cost" of No. 12 of the first instance judgment. Therefore, the management agency imposed a condition that it should comply with the decision of the management agency regarding the matters concerning the preservation of investment costs, etc. while granting permission for the execution of a harbor project, and even if the management agency calculates the total project cost under the status of acceptance by the non-management agency, acceptance by the non-management agency is to comply with the decision of the reasonable total project cost calculated under the relevant statutes, and even if the management agency calculates the total project cost below the reasonable total project cost, it cannot be viewed as a waiver of the corresponding right

Section 6 of the General Conditions for Approval of the Implementation Plan for Harbor Works, which adds the following to the 11th sentence of the judgment of the first instance, shall be subject to the consultation between the supervising company and the managing agency after receiving a plan for the performance of supervision.

The main contents of this case are that supervision companies shall start and conduct supervision, and where supervision begins, a copy of supervision contract and a copy of the commencement report of supervision shall be submitted to the management agency. However, in full view of the purport of each evidence Nos. 11 and 12, the plaintiff consulted with the officer in charge of the Incheon Maritime Affairs and Fisheries several times in the process of the construction of this case, and it can be acknowledged that the plaintiff submitted the report of commencement of supervision, the report of appointment of confirmatory supervisor, the human resources management plan, the plan of personnel management, the statement of security, the statement of security, the statement of calculation, the supervisor's career certificate, and the electronic contract. Accordingly, it is difficult to see that the plaintiff violated paragraph (6) of the general conditions of approval of the implementation plan for the construction of this case. In addition, in the case of fire-fighting construction supervision services, the contents of construction of fire-fighting facilities, such as automatic fire detection facilities and indoor fire hydrant facilities, etc. for specific fire-fighting objects under Article 17 (1) of the Fire-Fighting System Business Act are included in the construction work of this case.

○ In addition, “On the other hand” is added to “On the other hand, 12 Section 1” on the 13th of the first instance judgment.

Pursuant to the 14th sentence of the first instance judgment, the amendments to the 3th sentence will be amended."

Article 19(1)5(a) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 25298, Apr. 8, 2014; hereinafter the same) which was enforced at the time the permission to implement the instant construction work and the approval of the implementation plan was granted, provides that the construction project management expenses are stipulated as "supervision expenses" by stipulating that the construction project management expenses under Article 31 of the Engineering Industry Promotion Act and the cost of supervision based on the cost of supervision, etc. under Article 27-4 of the Construction Technology Management Act are included in the total project cost, and that the construction project of this case under Article 19(1)5(5) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 25298, Apr. 8, 2014; hereinafter the same shall apply). However, it can be seen that the construction project management expenses of this case under Article 19(1)5(a) of the former Enforcement Decree of the Construction Technology Promotion Act, which are included in the total project cost.

On February 12, 2009, the Plaintiff newly established the J Project Headquarters separately and exclusively performed the project. During the construction process of the instant construction project, the Plaintiff was known to the Incheon Maritime Authority that the Plaintiff would directly supervise the instant construction project, and also stated the terms of approval for the implementation plan in the form of a "self-supervision" as a result of the implementation plan, and stated the name, class, etc. of the supervisor in each field of civil engineering machinery, construction, etc. (Evidence No. 11 and 12). The Plaintiff is a public corporation under the direction and supervision of the Minister of Land, Infrastructure and Transport and its employees to conduct the construction project management (Article 55 (2) 3 and Article 94 (1) 1 of the former Enforcement Decree of the Construction Technology Promotion Act). The Plaintiff’s duty to authorize its employees to conduct the construction project of this case as of the date of completion of construction project as of the date of completion of construction project under Article 59 (1) 1 (a) of the former Enforcement Decree of the Construction Technology Promotion Act, including the first construction project management Act as of Article 19(1) of the Enforcement Decree.

Paragraph (5) of the general terms and conditions of approval of the above implementation plan shall be applicable to the subsidiary attached to the approval of the implementation plan. The above subsidiary does not have any specific legal basis (Article 10 of the Harbor Act provides for the establishment, approval, requirements, etc. of the implementation plan for a harbor project, but does not provide for the fact that the subsidiary is entitled to attach the same additional clauses as those of the above conditions). In order for the subsidiary to be recognized as effective without any legal basis, the contents must be lawful and implement, and must be in compliance with the principle of proportionality and the principle of equality and to the extent that it does not infringe on the essential effect of administrative disposition (see, e.g., Supreme Court Decision 2005Da26703, Jul. 26, 2007). In light of the fact that the non-management authority’s right to use harbor facilities is legal rights arising within the total project cost under Article 19 of the former Enforcement Decree of the Harbor Act, and thus, it is difficult to recognize the general terms and conditions of approval of the implementation plan to the plaintiff within the extent of free use.

○ In addition, ‘the first instance judgment' is added to ‘the first instance judgment of 15th page 8th page.'

○ Ham the first instance court's text 15, which provides that "it shall reflect on the second instance court's order."

The total project cost, which is the basis for calculating the period of free use by a non-management authority, under Section 17 of the first instance judgment, is included in the total project cost, which is the basis for calculating the period of free use by the operator of the relevant harbor project. The occurrence of interest during the construction shall be deemed as the date of confirmation of completion of the relevant harbor project, barring special circumstances. Even if the completion of the construction is completed during the period of the first construction period, the interest during the extended 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 project operator, for the extended period (see Supreme Court Decision 9Du10148, Sept. 4, 2001).

The head of the Incheon Aviation Construction Office, which adds the following contents to the third below, imposed the condition that "the construction interest on extension of the project period is excluded when calculating the total project cost for the portion reverted to the State" on July 2, 2012 when the modification of the purpose of reclamation of the Incheon Metropolitan City Mayor’s implementation plan and the procedure of permission for construction section division relating to the facility of this case was delayed, and on the condition that "the construction interest on extension of the project period is excluded when calculating the total project cost for the portion reverted to the State" was added to the approval for modification of the implementation plan, and there is no specific legal basis like other approval conditions imposed on the implementation plan as attached to the approval for modification of the implementation plan. As seen earlier, it is difficult to recognize the validity of the above approval condition, which

○ In the first instance court’s text No. 19, 24-25, below, 24-28, 29

○ The first instance court’s judgment 20 pages 1 to 7 are as follows.

① The Plaintiff is a contracting authority, which is a public corporation or quasi-governmental institution under the direction and supervision of the Minister of Land, Infrastructure and Transport, as prescribed by Articles 55(2)3 and 94(1)1 of the Enforcement Decree of the Construction Technology Promotion Act, and may directly manage construction projects according to its judgment. Accordingly, the Plaintiff directly performed construction project management by inserting the average of 12.6 persons, above the assignment criteria under Article 60 of the Enforcement Decree of the Construction Technology Promotion Act. Therefore, the Plaintiff’s expenses incurred in directly managing construction projects pursuant to the aforementioned statutes

part shall be included in the total project cost of the instant construction project.

○ The first instance court’s text No. 20, followed by the following:

③ The construction project management cost calculated according to the standards for construction technology service costs, etc. as at the time of the date of confirmation of completion, which is the date of the total project cost as to the instant construction project (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 2015-472, Jun. 30, 2015), is an amount of KRW 6,321,00,000 (applicable to labor cost in 2009) through KRW 6,931,400,00 (applicable to labor cost in 2015). Accordingly, the cost calculated by the Plaintiff is within the reasonable scope, and thus, the total project cost was saved significantly.

○○ As follows, the overall part of the first instance judgment No. 10 to 15 of the construction cost is as follows: (a) the Defendant asserts to the effect that the Plaintiff’s possession and use of the instant facilities upon completion of construction pursuant to Article 12(5) of the Harbor Act starts with the recovery of invested capital; (b) the Plaintiff’s failure to comply with the Plaintiff’s cause. This is due to the fact that it is necessary to compensate the non-management authority for losses arising from construction funds during the construction period, because the construction interest is included in the scope of the right to use harbor facilities as a total project cost after completion of construction, and the non-management authority can only use the harbor facilities after completion of construction. However, even if the purport of including the interest accruing from construction in the total project cost is to be included in the total project cost, it should be excluded from the total project cost per se within the scope of the total project cost, and thus, it cannot be excluded from the total project cost per se to the extent of free use of the construction cost, which exceeds the bounds of the aforementioned provision.

In addition, the defendant asserts that there is a cause attributable to the plaintiff since the plaintiff applied for confirmation of completion on March 31, 2014, despite the fact that the Mayor of Incheon Metropolitan City applied for confirmation of completion on reclamation of public waters on January 20, 2014 after the Incheon Metropolitan City Mayor announced the completion inspection on January 20, 2014. However, after the public announcement of confirmation of completion on reclamation of public waters in question, the period of preparation of necessary materials for the application for confirmation of completion is inevitably required again for the new registration of the port project site for the application for confirmation of completion after the public announcement of completion on reclamation of public waters in question. In addition, considering the above circumstances, it cannot be said that the period of business is extended due to the plaintiff's cause with an application for confirmation of completion after around 2 months after the public announcement of confirmation of completion on reclamation of public waters in Incheon Metropolitan City Mayor. Thus, the defendant's above assertion is without merit.

○ The following is added to 37 pages 8 of the first instance judgment:

(1) If necessary for efficiently performing construction works, a contracting authority may have a construction technology service business entity perform construction project management for any of the following construction works:

1. A construction project requiring a special management because of its high difficulty in design and construction management;

2. Construction works which are difficult to manage smoothly due to insufficient technical personnel of the contracting authority;

3. Construction works other than those as referred to in subparagraphs 1 and 2, which the contracting authority deems necessary for a smooth execution of the construction works.

○ Article 59 (Scope and Contents of Construction Management) of the first instance judgment, which adds the following contents to the third following acts:

(1) Scope of construction project management referred to in Article 39 (1) of the Act shall be classified by stages as follows:

1. All stages of design;

2. Basic design phase;

3. Working design phase;

4. The stage of purchasing and procurement.

5. The construction phase.

6. Follow-up stages of construction.

(2) The details of duties under paragraph (1) shall be as follows:

1. General project management, including planning, operation, and coordination of construction works;

2. Contract management of construction works;

4. Management of project costs for construction works;

5. Fair management of construction works; 6. Quality management of construction works;