In a case where a management agency calculates and notifies the total project cost, which serves as the basis for calculating the period of free use of harbor facilities by a non-management agency, the issue of whether the notice of calculation itself can be asserted as an appeal

Article 17(1) of the Harbor Act provides that land and harbor facilities created or installed by a non-management authority’s harbor project shall be reverted to the State or a local government upon completion of construction, and Article 17(3) of the same Act provides that a non-management authority may use the harbor facilities reverted to it within the scope of the total project cost under the conditions as prescribed by the Presidential Decree. A non-management authority may use the harbor facilities within the scope of the total project cost, regardless of the intention of the non-management authority, instead of naturally reverted to the State or a local government, the non-management authority may acquire the right of free use of the harbor facilities within the scope of the total project cost under the Harbor Act. Accordingly, the gratuitous use of the harbor facilities by the non-management authority is a special use that is not permitted to the general public. Since the non-management authority determines the total project cost by the total project cost during which the non-management authority can use the harbor facilities in question, if the management authority calculates the total project cost due to the difference between the amount and the total project cost based on legitimate standards, thus the management authority’s legal uncertainty or risk of free use of the public interest can be determined.

Article 17(1) and (3) of the Harbor Act, Article 1 of the Administrative Litigation Act / [General] Article 2(1)1, Article 3 subparag. 1 and 2, Article 4 subparag. 1 of the Harbor Act

Korea Gas Corporation (Law Firm Il, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Korea

The head of the Incheon Regional Maritime Affairs and Fisheries Construction Office (Attorney Park Jong-sung, Counsel for defendant-appellant)

Seoul High Court Decision 99Nu14029 delivered on March 6, 2001

All appeals are dismissed. The costs of appeal by the plaintiff are assessed against the plaintiff and the costs of appeal by the defendant Republic of Korea are assessed against the above defendant.

1. We examine the Plaintiff’s appeal against the head of the Incheon Regional Maritime Affairs and Fisheries Office (hereinafter referred to as the “head of the office of defendant”).

Article 17(1) of the Harbor Act provides that land and harbor facilities created or installed by a non-management authority’s harbor project shall revert to the State or a local government upon completion of construction, and Article 17(3) of the same Act provides that a non-management authority may use the harbor facilities reverted to it within the scope of the total project cost, as prescribed by the Presidential Decree. A non-management authority may use the harbor facilities within the scope of the total project cost, regardless of the intention of the non-management authority. Thus, a non-management authority may acquire the right to use the harbor facilities within the scope of the total project cost under the Harbor Act. Accordingly, a non-management authority’s gratuitous use of the harbor facilities constitutes a special use for the general public. Since a non-management authority’s total project cost is determined by the total project cost during which the non-management authority can use the harbor facilities. Thus, if the management authority calculates the total project cost without legitimate standards, it shall be deemed that the non-management authority’s legal uncertainty and risk cannot be used for the period corresponding to the difference between the amount and the total project cost. Therefore, the management authority’s legal means or method to seek such interests should be determined.

In the same purport, the judgment of the court below which maintained the first instance court which rejected the plaintiff's lawsuit seeking partial revocation of the notification of property re-determination on the ground that the notification of property re-determination by the head of the office of the defendant's office is an act of de facto notification that does not affect the plaintiff's rights and obligations and cannot be seen as an act subject to appeal litigation, is just and there is no

2. As to Defendant Republic of Korea’s appeal

The court below determined that the plaintiff's construction cost including dredging construction cost and compensation cost for fishing operation under the Incheon Regional Office of Maritime Affairs and Fisheries (the head of Incheon Regional Office of hereinafter referred to as "the Administrator of the Regional Office of Maritime Affairs and Fisheries") is more than 1.2 km away from the end of the acquisition base for the purpose that the plaintiff buried 1,060,000 square meters in front of the Nam-gu Incheon Regional Office, and constructed a LNG receipt base, and that the plaintiff's construction cost for dredging operation, which is less than 1.2 km away from the end of the acquisition base for the purpose of entering into and departing from the above acquisition base. After obtaining permission for reclamation of public waters and permission for implementation of harbor works, the plaintiff used dredging operation cost and dredging for the above acquisition base reclamation, and the plaintiff's application for confirmation of the completion of the above harbor works. However, the court below determined that the construction cost for dredging operation is more than 0% of the total construction cost for the above construction cost and dredging operation cost for the above purpose of the construction and dredging operation cost.

According to the records, in order to obtain authorization of completion of reclamation of public waters for the above acquisition base after the plaintiff started free use of the above harbor facilities, it can be seen that only reclaimed land which falls short of the total project cost of the above reclamation of public waters except for dredging construction cost included in the total project cost of the above reclamation of public waters, has been acquired, and there is no other evidence to deem that the above dredging construction cost was preserved for the amount equivalent to the dredging construction cost by acquiring reclaimed land equivalent to the dredging construction cost prior to the commencement of free use of the above harbor facilities. Thus, the above dredging construction cost should be included in the total project cost of the harbor works, and it should be excluded from the total project cost, or at least from the total construction cost of the above acquisition base by dredging the surface of the above acquisition base, or from the construction cost of the above acquisition base site as the construction cost of the acquisition base site separately. Thus, the judgment of the court below to the same purport is acceptable. In so doing, contrary to the allegations in the grounds of appeal, there is no misconception of facts due to violation of the rules of evidence or

In addition, the non-management authority's right to use the pertinent harbor facilities is naturally recognized within the scope of the total project cost calculated by the Port Act and subordinate statutes. The head of Incheon Port Office imposed a condition that the Plaintiff should comply with the decision of the head of Incheon Port Office with respect to the matters concerning the preservation of the investment cost, etc. of the pertinent harbor project while implementing the instant harbor project, and even if the Plaintiff calculated the total project cost upon the Plaintiff's acceptance, the Plaintiff's acceptance is merely that the Plaintiff would comply with the reasonable decision of the total project cost calculated by the relevant laws and regulations, and it cannot be deemed that the head of Incheon Port Office would give up the corresponding right to use the harbor facilities in advance even if the amount of reasonable project cost is calculated by the head of Incheon Port Office. Thus, the decision of the court below rejecting the Defendant's defense that the Plaintiff's right to use the harbor facilities is limited within the total project cost calculated by the head of Incheon Port Office according to the

3. Therefore, each appeal by the plaintiff and defendant Republic of Korea is dismissed without merit, and all costs of appeal by the plaintiff are assessed against the plaintiff and the costs of appeal by the defendant Republic of Korea are assessed against each of the above defendants. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)