2015Nu326 Demanding revocation, such as changing the rates of port facility usage fees.

○○ Incorporated Company

Jinju City

○ Representative Director

Law Firm (Limited) ○○○○

[Defendant-Appellant]

쇠지지지

Incheon

Representative ○○○○

Law Firm LLC (LLC) 00

[Defendant-Appellant]

Seoul Administrative Court Decision 2014Guhap31487 decided January 29, 2015

July 15, 2016

February 3, 2017

1. Of the judgment of the court of first instance, the part against the plaintiff regarding the disposition described in paragraph 2 below shall be revoked.

2. The Defendant’s imposition of fees for the use of harbor facilities against the Plaintiff on April 16, 2014 is revoked.

3. 1/10 of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

On March 31, 2014, notice of change in the rates of user fees for harbor facilities issued by the Defendant against the Plaintiff, and April 2014.

16.The imposition of charges for the use of a harbor facility shall be revoked.

2. Purport of appeal

The order is as set forth in the text.

1. Scope of the judgment of this court;

The plaintiff, as stated in the purport of the claim in the first instance court, on March 31, 2014 by the defendant's fee rate for the own harbor facilities.

Although the notice of change was sought for cancellation, the first instance court's notice of change in the rate of rental fee for harbor facilities among the lawsuits in this case.

The part of the claim for revocation was dismissed, and the plaintiff did not object to this part, so that the plaintiff did not object to this part, each of the above subparagraphs.

De Part was excluded from the scope of this Court’s trial. Accordingly, the scope of this Court’s trial was the Defendant.

- April 16, 2014 is limited to the imposition of charges for the use of a harbor facility.

2. Details of the disposition;

A. The plaintiff's business of selling electricity to the Korea Electric Power Corporation using coal-generating technology, and power plant

A public institution that operates a construction project, etc., which is located in Incheon (Yiungdo) and

A person who uses a facility (hereinafter referred to as the "harbor facility of this case") and the defendant on July 11, 2005.

Development of Incheon Port Port Port Port Port Facility from the Incheon Regional Maritime Affairs and Fisheries Office as a project established under the Construction Act;

It is an agency that manages the port facilities of this case upon transfer of duties concerning management and operation.

B. Establishment of a contact facility for procuring raw materials, etc. necessary for the operation of the Yeongdeungpo-gu Power Plant

for purposes of subsection (1) and (2) of the instant harbor facilities, fin wharfs, fin wharfs, fin wharfs, and fin wharfs.

B was established at the Plaintiff’s expense, and applied the other navigation rates for about 10 years from August 1, 2004.

The cargo entry and departure fee has been paid to the Incheon Regional Maritime Affairs and Fisheries Office and the defendant to whom it has been transferred.

C. The Defendant: (a) on March 31, 2014 for the Plaintiff; and (b) on the use of harbor facilities and usage fees of trade ports.

Regulations (Notice of the Ministry of Oceans and Fisheries, hereinafter referred to as the "Notice of this case") shall be made from April 1, 2014 to the existing provisions.

The rate of facility user fee (cargo) shall be increased from other port rates to the Incheon port rate.

The notice of change in the rates is given, and April 16, 2014. Charges for the use of port facilities (cargos) applying the rates of Incheon Port;

12, 261, and 690 won were imposed (hereinafter referred to as the "disposition in this case").

[Grounds for Recognition] Unsatisfy, Gap evidence 1, 2, and 4, Eul evidence 6, and all pleadings

3. Party’s assertion and key issues of this case

A. The plaintiff's assertion

1) When an operator of port facilities changes the rate and method of collection of usage fees, he/she shall make the former Harbor Act ( March 2014).

24. Article 30(7) of the Harbor Act (amended by Act No. 12545, hereinafter referred to as "harbor").

report to the Minister of Oceans and Fisheries and the inquiry of the Port Authority pursuant to Article 10 subparagraph 6 of the Port Authority Act.

the disposition of this case without following the above procedure shall be subject to the resolution of this case.

was.

2) Grounds that user fees may be imposed on the so-called undeveloped harbor facilities that are not owned by the State.

Since there is no statute, the defendant is a user fee for the use of the port of this case, which is the plaintiff owner.

shall not be imposed or collected.

3) In addition, the Defendant may impose a user fee only on the port facilities managed by the Defendant,

Since the Port Authority, etc. is strictly divided into "management" and "Jurisdiction", it falls under the jurisdiction of the defendant.

solely on the ground that the instant harbor facilities cannot be immediately imposed a user fee.

4) Any objection by delegation under Article 30(4) and (6) of the Harbor Act, and Article 28(2) of the Enforcement Decree of the Harbor Act.

public notice, Article 30(3) of the Port Authority Act, and Article 12(1) and (2) of the Enforcement Rule of the same Act

Regulations on the Use of Harbor Facilities and the Use Fees of the Natural Harbor (hereinafter referred to as the "Rules of this case")

usage fees imposed by harbor works shall be imposed only on a person who uses the relevant harbor facilities.

of this section.

In other words, the notice of this case and the phrase "cargo entry and departure fee" which is a kind of fee under the provisions of this case.

(1) If cargo is used as port facilities, it shall be imposed on the owner of the cargo and subject to collection.

Do must be limited to the extent related to the quantity, cargo, and storage of the cargo. However, the notice of this case and the notice of this case

The provisions of this case use the cargo entry and departure fees for facilities of waters, such as navigation routes and anchorages of the relevant harbor;

In one case, it can be imposed even if it goes beyond the delegation scope of the parent law.

D. The disposition of this case based on this is unlawful as it has no legal basis.

5) The Plaintiff’s rate of usage fees under other paragraphs for the last ten years according to the measure of the Minister of Maritime Affairs and Fisheries.

The defendant has paid the cargo entry fee applied, and the defendant also has a low rate in accordance with the above measures to the plaintiff.

Along with the granting of usage fees, the instant disposition in which the rate was changed without any change in circumstances.

Sector violates the principle of trust protection.

6) Other paragraphs are required for other power plants not included in Incheon Port with the Plaintiff.

The principle of equality to apply the rate of Incheon only to the plaintiff in the application of the rate.

The disposition of this case imposes excessive costs on the plaintiff due to the disposition of this case

Considering that the energy cost increase leads to the instant disposition is discretionary.

It is a deviation and abuse.

B. The defendant's assertion

1) Anchorages used by ships which intend to enter the instant harbor facilities, sea routes are managed by the Defendant.

Since 'harbor facilities outside the port area', the defendant's claim against the plaintiff pursuant to Article 30 (1) of the Port Authority Act.

Charges for the use of facilities may be imposed and collected.

2) The Minister of Oceans and Fisheries shall publicly notify Article 2013 - 28 of the Port Authority Act and Enforcement Decree of the same Act.

Detailed classification, etc. of the usage fees and rents collected by the harbor works pursuant to Article 13 (2).

The notice of this case and the Defendant’s notice of this case and Article 4(3) and 30(3) of the Port Authority

In accordance with Article 12(1) and (2) of the Enforcement Rule of the same Act, the instant provision was enacted.

According to the provisions of this case, harbor construction charges for cargo entry and departure from users of port facilities.

Fees, including fees, may be collected, and harbor facilities, such as sea lanes and anchorages, loaded with cargo on vessels;

in the case of use by the owner and owner of the vessel, as such owner and owner use all the relevant harbor facilities, before the same period.

The disposition of this case rendered under this case is lawful. The Supreme Court Decision 78Du407 delivered on August 26, 1980 shall be delivered with all agreements delivered on August 26, 1980

The judgment of the body also held that the loading of cargo in the harbor is a port facility, that is, a sea route in the harbor.

Since the cargo is in quantity and quantity, the cargo was in quantity and cargo through the private facility.

In addition, the legality of the disposition of the instant case is supported even if the freight port fee can be collected.

(2) the Corporation.

C. Major issues of the instant case

The defendant shall, in order to load and load cargo to be used by the plaintiff as fuel for the power generation generation of the Incheon Port.

Cargo entry and departure fees applying the rate of Incheon port, deeming that the harbor facility outside the harbor zone was used.

The Port Authority and the Enforcement Decree of the same Act imposed the instant disposition. However, the Port Authority and the Enforcement Decree of the same Act

If a harbor project is conducted, user fees may be imposed and collected for the harbor facilities under its management.

Therefore, in this case, ① the Defendant’s waters including the route and anchorage of the instant port facilities

Whether "management" is "management of snow and mooring facilities," and ii) Incheon for the plaintiff to load and load cargo.

It is important whether 'use' or 'use of anchorage and sea route' which is a port facility outside the harbor zone of the port area.

The issue is the issue.

We first examine the procedural legitimacy of the instant disposition, and further examine the procedural legitimacy of the instant disposition.

We will look at the substantive legitimacy of the disposition of the case in order.

4. Whether the procedure of the instant disposition is lawful

A. Article 30 (7) of the Harbor Act provides that a harbor facility operator or a lessee shall pay a rental fee under paragraph (3).

Matters concerning rates, methods of collection, etc. shall be reported to the Minister of Oceans and Fisheries in advance.

The Port Authority Act, Article 30(3) of the Port Authority Act, if the Corporation collects user fees pursuant to paragraph(1).

The Ministry of Oceans and Fisheries shall determine usage fees rates by type, as prescribed by Ordinance of the Ministry of Oceans and Fisheries

report to the Minister. The same shall also apply to any modification to the reported matters.

In addition, Article 10 subparagraph 6 of the Port Authority Act establishes the standards for the rent and fee of port facilities.

The Port Committee shall be established in the Corporation to deliberate and resolve on the matters, etc.

(b) Category B 1 and 14 evidence produced earlier (including the number of branches, if any)

In full view of the purport of each statement, 1 Incheon Regional Maritime Affairs and Fisheries Office's port

On August 16, 2011, the Minister of Land, Transport and Maritime Affairs may manage the facility, and the harbor facilities under the jurisdiction of Dou Dou Construction Project.

the port facilities of this case (sea routes and anchorages, which are water zones and facilities of field-interest power plants, and stone, which are mooring facilities, stone, stone, tin

The defendant designated and publicly notified a greebb, water grebal as a harbor facility outside the Incheon Port Port Port Area, and the defendant's port hole.

The fact that private law and the notice of this case and the usage fee are collected under the provisions of this case

The Minister of Oceans and Fisheries, on July 13, 2004, provides that "the Minister of Oceans and Fisheries shall notify the application rate of cargo entry and departure fees for Yeongdeungpo Power Plants"

as a result of a review of the Plaintiff’s request for the reduction of cargo entry and departure fees, the Incheon Regional Maritime Affairs and Fisheries Office

The legality of the applicable rate imposed by the court shall be determined as having no problem.

B. The supply of low and stable power to the public as well as to secure the competitiveness of other thermal power plants;

from August 1, 2004, the rate of Incheon Port (192 won/metric) is less than that of the current Incheon Port from August 1, 2004.

Other port level (114 won/metric) was sent to the Plaintiff a letter stating that it shall be applied to the Plaintiff, and the above statement was sent to the Plaintiff

In accordance with the official document, the Incheon Regional Maritime Affairs and Fisheries Office shall apply the rates of other ports to the plaintiff for cargo entry and departure fees.

(3) The defendant shall apply other navigation rates from the time when the Incheon Regional Maritime Affairs and Fisheries Office was managed.

The imposition and collection of user fees of the port facilities of this case shall be governed by the relevant statutes, the notice of this case, and the provisions of this case.

The plaintiff on March 31, 2014 at the next Incheon Port to the port facility of this case.

After notifying the application of the rate, the fact of the disposition in this case may be recognized.

C. According to the above facts of recognition, the disposition of this case is in accordance with the relevant statutes and its history in consideration of the previous policy considerations.

To correct the matters imposed and collected differently from the notice and the content of the instant provision; and

It is only applicable to the imposition and collection of user fees calculated by the Harbor Committee, and the defendant shall deliberate by the Harbor Committee.

Matters concerning the rate and method of collection of user fees as reported to the Minister of Oceans and Fisheries.

The provision of this case itself does not necessarily constitute a change, and even in such case the plaintiff must do so.

shall not be deemed to have undergone the procedures for deliberation and resolution by the Port Committee alleged by the Committee. Thus, this shall not apply

There is no procedural error in the disposition. 1) Accordingly, the plaintiff's assertion on this part is not a procedural error.

No reason exists.

5. Whether the instant disposition is substantive and lawful

(a) Relevant statutes, etc.;

As shown in the attached Form.

B. Grounds and effects of the instant disposition

1) Details of relevant statutes, etc.

The term "harbor facilities" refers to basic facilities, functional facilities, support facilities, harbor-friendly facilities, and harbor hinterlands.

(1) Of them, the basic facilities: ① the water area facilities, such as sea routes, anchorages, oil stops, and the chief of ships; ② the breakwater and the discharge;

The outer facilities, such as a strike, embankment, tide embankment, Dop, lock door, and bank, and the third road, bridge, railroad, track, and track;

Port traffic facilities, such as canals, 4. Awnings, such as inner walls, water wharfs, floating bridges, tampin, tampin, landings, lamps, etc.

basic facilities, functional facilities, support facilities, harbor water-friendly facilities, etc. within the harbor area;

A harbor outside a harbor zone under only law shall be designated and publicly notified by the Minister of Oceans and Fisheries.

Harbor facilities prescribed by the Act (Article 2 subparagraph 5 of the Harbor Act).

A person who intends to use port facilities (excluding navigational aids) shall use sea, as prescribed by Presidential Decree.

The Minister of Oceans and Fisheries or the Minister of Oceans and Fisheries shall obtain permission from the Minister of Oceans and Fisheries.

A person who has been delegated or entrusted with the operation (hereinafter referred to as "harbor facility operator") shall conclude a lease contract with the person who has been entrusted or entrusted with the operation thereof.

(b) A person who has entered into the relevant rental contract (hereinafter referred to as a "leased") shall conduct harbor facilities with the consent of the lessee.

(Article 30(1) of the Harbor Act), the Minister of Oceans and Fisheries, harbor facility operators, or rental contract.

Any person may collect user fees from persons who use harbor facilities pursuant to Article 30 (1) of the Harbor Act.

(Article 30(4) of the Harbor Act, matters necessary for the kinds, rates, etc. of usage fees shall be prescribed by Presidential Decree.

(Article 30 (6) of the Harbor Act).

On the other hand, under the Port Authority Act, the Port Authority has established each port of trade as a new port of port.

Construction works concerning snow, reconstruction, maintenance, repair, dredging, etc., and security, security, and cargo pipes of ports;

The jurisdiction of the Corporation shall be within the jurisdiction of the Corporation to conduct projects for the management and operation of the ports, such as Ri and passenger terminals;

Harbor zones under the Harbor Act and harbor facilities other than harbor zones prescribed by the Presidential Decree (harbor zones).

Article 4(2) and (3), Article 8(1)1 of the Judicial Act, 'other than those prescribed by Presidential Decree',

The Minister of Oceans and Fisheries shall designate and publicly notify facilities outside the harbor zone for each construction, as facilities outside the harbor zone.

of the basic facilities of subparagraph 5 (a) of Article 2 of the Harbor Act, including water and mooring facilities (harbors)

Article 2 subparag. 1 of the Enforcement Decree of the Judicial Act. The Corporation intends to use or lease harbor facilities managed by the Corporation.

A user fee or rent may be collected from a person, and in such cases, the use by the Corporation may be collected from such person.

The types of fees or rents shall be prescribed by Presidential Decree (Article 30 (1) of the Port Authority Act);

When collecting user fees pursuant to Article 30 (1) of the Construction Act, the Minister of Oceans and Fisheries shall do so.

The Minister of Oceans and Fisheries shall determine the rates, etc. for each type of harbor (harbor)

Article 30(3) of the Construction Act, and the Corporation shall publish the rates, etc. by type of reported user fees (paragraph).

Article 12 (2) of the Enforcement Rule of the Universal Corporation Act (Article 12 (2)).

2) The notice of this case and the validity of the provision of this case

The public notice of this case is delegated with Article 30 of the Harbor Act and Articles 26 through 28 of the Enforcement Decree of the same Act.

As to the use of harbor facilities and usage fees, the rules of this case provide for necessary matters.

prescribed in Article 4(3) and Article 30(3) of the Port Authority Act, and Article 12(1) and (2) of the Enforcement Rule of the same Act

use and use fees for harbor facilities under the jurisdiction of the port of trade, including the Incheon port.

Matters necessary, etc. (Types, rates, and facilities subject to collection of user fees for harbor facilities)

Detailed details of the public notice of this case and the provisions of this case are set equally in the same manner.

section 30(1) of the Port Authority Act shall apply to cases where the Port Authority collects user fees.

Although the types of usage fees are authorized to be determined by the Presidential Decree, the rates by type of use fees shall be port.

Pursuant to Article 30(3) of the Construction Corporation Act and Article 12(1) and (2) of the Enforcement Rule of the Port Authority Act, the Port Authority directly

shall be reported to and publicly announced by the Minister of Oceans and Fisheries. This shall be enacted by the Port Authority.

The rate of usage fees to be collected by the port management authority in the previous Harbor Act, the Enforcement Decree of the Harbor Act, and the sea;

The type of delegation is somewhat somewhat different from that of the fishery department (or the Ministry of Land, Transport and Maritime Affairs) public notice.

Different. However, the provision of the statute provides for specific matters of the statute to a specific administrative agency.

not specifying the procedure or method of exercising the authority, granting the authority to do so.

in the form of administrative rules, the acceptance administrative agency specifically determines the content of the statute.

such provision shall have effect only within the territory of an administrative organization, and shall have external binding power;

The specific details of laws and regulations in an administrative agency, not as a general effect of administrative rules which do not have any

shall have the function to supplement the contents of the provisions of the laws and regulations granting the authority to supplement.

in this chapter, as long as it does not exceed the limits of delegation of the statute, external combinations with those

Any binding legal order is effective (Supreme Court Decision 2007 delivered on April 10, 2008).

See Supreme Court Decision 24841. The provision of this case and the notice of this case are all made unless there are special circumstances:

Provisions on the rates for each type of use fee delegated by the higher law and supplement the contents thereof.

Since it is deemed that there is a binding force of each person in combination with a higher law.

3) Direct ground for the instant disposition

Comprehensively considering the contents of the relevant statutes, the instant notice, and the interpretation of the instant provisions

In the event that a harbor project is established in any trade port and manages the harbor facility under its jurisdiction, the harbor project

(b) A harbor shall be subject to a disposition to collect the user fee from a person who intends to use the harbor

It is reasonable to see Article 30 of the Construction Work Act. On the other hand, a harbor project having jurisdiction over a certain harbor facility is not a port.

User fees for persons who intend to use the harbor facilities by the Minister of Oceans and Fisheries pursuant to Article 30 of the present Act

The disposition of this case is to be collected by the Defendant, as seen earlier, after returning to the instant case.

A. The plaintiff used the port facilities of this case, which are port facilities outside the Incheon Port Port Area.

As the grounds for collection are revealed, the provision of this case, not the notice of this case, is the disposition of this case.

A direct basis for the disposition of this case (as well as the grounds for the disposition of this case to the same effect in the trial)

In the instant notice, the instant notice is amended to the instant provision.

On the other hand, the provision of this case can be referred to as "harbor facilities subject to collection of freight entry and departure charges from port facilities."

The term "cateral facility", "portal traffic facility", and "cargo storage facility" are defined as "cargo storage facility". The following:

not a ship, the route, anchorage, etc., which is a water zone facility of the Incheon State shall be deemed to have been used.

Change of whether the provision of this case imposing cargo entry fee has legitimate grounds

We examine.

(4) Summary of the Supreme Court en banc Decision 78Du407 Decided August 26, 1980

A) Supreme Court en banc Decision 78Du407 delivered on August 26, 1980 (hereinafter referred to as " en banc Decision") No. 78Du407 delivered on August 26, 1980

D) The gist of the Majority Opinion is as follows.

Before May 1, 1974, the provisions of the so-called 'port entry fee or cargo charge' did not exist, but only with respect to foreign trade vessels falling under the current port charges, or so-called 'port entry fee' were charged with individual charges for mooring, mooring, mooring, loading, and wharf sites. At the same time, the provisions of the 'port entry fee or cargo charge' were to be applied to the 6th anniversary of the entry into port facility charges for the operation of the 6th entry into port facility under the 1973 'the 6th entry into port facility charges' and the 6th entry into the port facility charges were to be applied to the 6th entry into the port facility charges for the improvement of the 6th entry into the port facility charges. The 1978 revised the 6th entry into the port facility charges and the 6th entry into the port facility charges for each port entry into the port facility. The 6th entry into the port facility charges were to be applied to the 6th entry into the port facility charges.

In particular, it is true that the above cargo entry fee is to be paid for all cargo loaded within a harbor by the volume of its tonnage, that is, it is to collect the cargo entry fee in principle by using private facilities in the quantitative area of the cargo, and that in all cases, it is to collect the cargo entry fee for a foreign trade vessel at the same time, and it is to collect the cargo entry fee for a vessel loaded within a private port after paying the vessel entry fee again, and to collect the cargo entry fee for a vessel loaded within a port as a matter of principle after paying the cargo entry fee for a vessel loaded within a private port.The purport of the above provision is that the cargo entry fee for a vessel loaded within a port is to be collected from the vessel loaded within the port as revised on December 31, 1975 (this Act is to be discarded, and it is to be newly established within the port of loading and unloading, and it is to be charged with the cargo entry fee for a vessel loaded within the port of loading and unloading as the main function of the vessel's port of loading and unloading.

B) As above, the majority opinion of the en banc Decision is that a vessel has a main function in a harbor.

Recognizing that the ship is at anchor with the safety of entry into the ship, and that the ship is at anchor, and that the ship is at anchor, and that the ship is at anchor.

In the case of a ship, the ship owner's entry fee, and in the case of a latter, the shipper's entry fee, respectively.

in accordance with the principle of beneficiary's burden on the costs of installation of a harbor facility;

the ship's entry fee, and the ship's entry fee shall be imposed only on the owner of the ship loaded and unloaded in reality, respectively.

Under the premise of the purpose of legislation of the Harbor Act, the plaintiff is a harbor facility in the Ulsan Port, i.e., a harbor.

Since the cargo was loaded by using a sea route, the cargo physically in quantity and cargo through a private facility;

Even if so, it was judged that the freight charge can be collected.

C) According to the purport of the Majority Opinion of the en banc Decision, a vessel is outside a harbor zone of a certain harbor.

If a facility of a water area such as a sea route designated and publicly notified as a harbor facility is used, the facility is already loaded on the ship;

Inasmuch as cargo is assessed to be used on a sea route, it is a kind of cargo of port facility usage fee (cargo fee).

The ship may also impose navigation fees on the owner of the ship, i.e., the use of the sea route of any port.

(b) the volume and volume of the cargo using other harbor facilities that are not the harbor facilities within that harbor area;

Even if you get out, it is possible to interpret that cargo entry and departure fees are imposed.

5) Justifiable interpretation of the grounds for the imposition of cargo entry and departure charges

However, a systematic interpretation of the relevant statutes as seen earlier is a user fee for port facilities.

Cargo entry and departure fees shall be imposed only when the harbor facilities which load and unload cargo are used.

That is, cargo entry and departure fees as stated in the majority opinion of the en banc decision.

The position that a facility in a water area is included in a facility subject to collection is no longer reasonable; and

(1) The time of collecting cargo entry and departure fees, among the criteria for calculating the rates under the provision of this case.

Part that included a water facility in the snow also deviates from the scope of delegation by the relevant statute and causes the illegal act;

The main basis is as follows.

○ The Harbor Act and the Port Authority may impose a fee for the use of a port facility when the Port Authority uses the port facility.

The meaning of ‘use' is defined as "for certain purposes and functions". However, the meaning of ‘use' refers to "for certain purposes and functions."

The term "sea route" is defined as a harbor facility under the Harbor Act. As to the term "sea route"

There is no definition in the Harbor Act itself, but Article 2 subparagraph 11 of the Act on the Arrival, Departure, etc. of Ships.

According to Article 10 of the same Act, the term "sea route" is designated and used as a passage for the entry of vessels.

It refers to a limited waterway. If so, it is the ship itself's own passage to use a sea route.

The ultimate purpose of using sea route is cargo. The ultimate purpose of using sea route is to use it.

The fact that the cargo is not a ship but a ship but a ship uses a sea route even if it is in quantity and cargo.

In the same way, according to Article 2 subparagraph 7 of the same Act, the "Anchoring ship" can anchor a ship.

Since it means a place where the ship is at issue, the use of anchorages for the ship's own anchorages.

A. B. It can be viewed that L. B.D.

0 The term "harbor" under subparagraph 1 of Article 2 of the Harbor Act means the entry and departure of a ship, the boarding and unloading of a person, and cargo.

Facilities for loading, unloading, storage and processing, marine water-friendly activities, etc., and assembly, processing, packing, and manufacturing of goods;

The place where facilities for creating added value are installed; and Article 2 subparagraph 5 of the Harbor Act

‘harbor facilities' shall correspond to the above comprehensive functions of the ports, and shall be subject to the water area facilities, port traffic facilities;

Multi-facilities, such as mooring facilities, loading and unloading facilities, passenger facilities, cargo distribution facilities, ship distribution facilities, sea-friendly water facilities, etc.

The two facilities are networked, however, objects using such facilities or objects using them.

Fees for the use of harbor facilities shall be the rate corresponding to the functions and scale of use of the harbor used.

No user fee shall be imposed for port facilities established and not used by the person.

Article 26 (1) of the Enforcement Decree of the Universal Law shall be prepared by a person who intends to use a harbor facility;

The location, name, area, length, etc. of the port facility to be used and the size of the harbor is used, and the harbor is used.

Article 28 (1) of the Enforcement Decree of the Act provides that ship charges, freight charges, passengers, and passengers shall not be integrated into harbor facility usage fees.

Various rules of relevant statutes, such as classification of terminal usage fees, port facility exclusive use fees, etc.

The Court shall support this.

Of these fees, cargo entry and departure charges are port facilities used for the entry and departure of cargo.

The usage fee is imposed on the basis of the State Property Act Article 32 and Article 29 of the Enforcement Decree of the same Act.

The user fee of the State property shall, in principle, be based on the state property subject to use.

a person who uses directly with permission for use, for example, the lease from such person;

No tax shall be levied on any third party who has entered into a contractual relationship with such person, such as one person, etc.

In the case of the imposition of user fees under Acts and subordinate statutes, as well as in the case of the imposition of user fees to third parties;

In order to do so, there is a need to stipulate the law explicitly.

However, in principle, port authorities directly operate port facilities to users of port facilities.

exceptionally, a person entrusted with the operation of a port facility shall be allowed to impose user fees and a person entrusted with the operation of the port facility

A user fee shall be paid by a person who has entered into a contract with the lessee;

section 28(1) of the Act provides that each section of the Act shall be applicable to the owner of a facility of a water zone.

Cargo to the owner of the cargo who is in the relation of receiving cargo and does not directly use the water area facility;

There is no exception provision that the departure fee (which is a kind of fee) can be imposed. If so, it is so.

In principle, the user fee for the water facilities shall be limited to the owner using the water facility function of the port.

It is reasonable to interpret that it can be imposed.

0. As pointed out in the majority opinion of the en banc decision above, the former Harbor Act (Act No. 453, Mar. 8, 1991)

Before amendment by Law No. 4358, the ship is at anchor in the port where the ship enters the port safely.

Pursuant to the function of the ship owner, the flag of a port in which the ship enters the port and the cargo is loaded and unloaded within the port.

Pursuant to the capacity of the owner, the freight charges are imposed on the owner, respectively. The Majority Opinion’s grounds therefor are as follows.

The principle of the beneficiary's burden on the cost of installing only facilities is stipulated. However, cargo at a wharf, etc. is:

A port related to quantity and cargo, as it is used only through the process of loading and unloading.

the use of the facility shall be subject to the cost of the use of the facility. Unlike this, the quantity of cargo and cargo

Whether a vessel has used a sea route or anchorage, regardless of whether the vessel has used a harbor facility;

The relationship between profits and bearing expenses shall be between the imposition of cargo entry and departure charges.

(1) The State is not in accordance with the majority opinion of the above en banc Decision. The State is not in accordance with the above en banc Decision

In respect of the person who leased and used the State property, as well as the person who leased and used it.

It is an unreasonable result that the user fee may be imposed in duplicate.

According to the provisions of this case, sea routes and ship owners among water facilities shall be subject to collection of ship entry fees and departure fees.

It is defined as facilities and defined as facilities subject to the collection of anchorage fees.

Notwithstanding the Do, the area of "other than port traffic facilities and cargo storage facilities" as facilities subject to the collection of cargo charges;

The "facilities" are provided for in this section.

(1) However, a person who uses a sea route or anchorage as seen earlier is not the owner of the ship-going land.

(2) The defendant shall pay to the owner of a ship using a sea route or anchorage the entrance and departure fee and the anchorage fee.

(3) Port traffic facilities subject to the collection of cargo entry and departure charges outside the water area facilities; and

All cargo storage units are facilities directly used for cargo, and 4 Cargo limits loaded on a ship.

If the purpose of indirectly using the water zone facilities is to be regarded as subject to the imposition of user fees;

Cargo, such as the outer facilities, navigation auxiliary facilities, mooring facilities, etc., other than the water zone facilities, among facilities subject to the collection of ship charges;

Article 28 of the Enforcement Decree of the Harbor Act and Article 28 of the Enforcement Decree of the Harbor Act can be provided for duplication for facilities subject to collection of entry

Article 13 of the Enforcement Decree of the Port Authority Act provides that Article 13 of the Enforcement Decree of the Port Authority shall exclude fees from vessel fees, freight charges, etc

in light of the fact that the provision of this case is the charge for the ship's fee and the charge for the entry into and departure from the waters facilities.

(2) The overlapping provision of the cargo shall be made without any particular basis on the property right of the person entitled to cargo.

On the other hand, the use of harbor facilities that can not be subject to the imposition of usage fees by the harbor

It is an unreasonable double imposition that allows user fees to be imposed.

○ It is impossible to interpret that the cargo indirectly uses a sea route through a ship.

However, according to the provisions of this case, the rate of ship entry and departure fees per ton is 133 won per ton, and tonnage;

shall be subject to the international gross tonnage calculated in accordance with the International Convention on Measurement of the International Gross Tonnage, 1969.

international gross tonnage, in accordance with Article 3 of the Ship Act and Article 9 of the Rules on the Tonnage Measurement of Ship.

It shall be calculated on the basis of the value calculated by subtracting the total volume of the excluded places from the total volume of the class of the class. Here, the "ende funeral"

small means a vessel which is closed by outer boards, divisions, walls, decks or covers (other than tents).

"Loading place" means all places within the territory of the bill means a place of destination used for the carriage of cargo.

The entry into and departure from a ship is the basis for calculating the rate of the entry into and departure from a ship.

Part of the gross tonnage is reflected in the gross tonnage. In other words, it appears that the cargo indirectly uses the marina route.

Do already indicate the tonnage of the ship, including the space of the loading place at the port of entry into or departure from the ship;

Therefore, the cost of using such a assumptive and indirect sea route has already been collected.

There is sufficient room to see as such.

0 In 1975, the former Harbor Act of 1975 applied before it was enacted as a basis law for the imposition of the charge for the entry into and departure from ports.

for tons of tax-related Acts (Law No. 2874 of Dec. 31, 1975, which was not repealed on January 31, 1976; hereinafter referred to as "tons of tax-related Acts")

Article 1(1) of the Act provides that "A vessel traveling to or from a foreign country for foreign trade" shall open to or from an open port.

Upon entry into an port, thirty won per ton of net tonnage shall be imposed on each entry into the port. The entry into the port includes the following rules:

The entry itself has a system to pay a certain amount of money. However, the same is the same.

Article 15(3) of the former Harbor Act (amended by Act No. 2758 of April 4, 1975) at the time

The management agency shall determine that user fees shall be collected from persons who use or utilize harbor facilities.

In addition, the above port facilities include water zone facilities, port traffic facilities, loading and unloading facilities, all of which are included.

As can be confirmed by the Majority Opinion of the Board of Governors, the Office of Administration shall comply with the provisions of the above collection of royalties.

D. Individual usage fees for mooring, inner walls, floating bridge, mooring schedule, water wharf, open storage yard, wharf site, etc.

shall be imposed on the entry facts, apart from the difference between the amount and the name.

I collected ‘the ton tax' and ‘the fee imposed for the use of port facilities' together.

However, as stated in the majority opinion of the en banc Decision, Korea shall not be more than 1973

In concluding IBR and Loan Agreements, it is necessary to raise the rate of use of port facilities. Accordingly, it is necessary to raise the rate of use of port facilities.

D. On April 16, 1974, the Ministry of Transport No. 26 of the Ministry of Transport and Maritime Affairs began to collect the freight charges, and amendments thereafter.

the former Harbor Act (amended by Act No. 2758 of April 4, 1975, and amended by Act No. 2758 of December 31, 1975, by Act No. 2874 of December 31, 1975

Paragraph 3 of Article 2 of the Harbor Act (amended by Act No. 2758, hereinafter referred to as the " Harbor Act") stipulates freight charges.

in the port area and port area, the cargo of this case is fixed, and the cargo of this case is loaded from the ship in the port area and port area

(1) The management agency shall collect from a ship for the use or use of harbor facilities to be loaded on the ship;

Charges means Charges. These provisions are amended on December 31, 1975, by the former Harbor Act (Law No. 443, March 8, 1991) amended on March 8, 1991.

Article 15-2 of the Harbor Act (No. 2874) amended by Act No. 4358, hereinafter referred to as "harbor").

The management agency shall be a fee as provided in Article 15 (3), which enters the harbor concerned, and shall be a ship entering the harbor concerned.

ter Water zone facilities (except for stuffs and mooringss), outer facilities, and vessels for the use of navigational aids and facilities.

Pursuant to the use of port facilities for the port of entry and cargo to be unloaded or unloaded from a ship;

Cargo port charges may be collected. "The Harbor Act No. 2874 is succeeded to the same clause. The Harbor Act No. 2874 provides that these articles shall apply.

Water entry fee was classified as a kind of usage fee along with the vessel entry fee, and on the other hand, the tonnage tax law was on January 1, 1976.

31. Ad hoc. Ad hoc 15 years passed thereafter, amended by Act No. 4358 of March 8, 1991

The Gu Harbor Act deleted entry fees items, and the user fees for port facilities to be collected by the management agency under the Act.

The Ministry of Construction and Transportation without direct determination, and this framework has been so far.

is now being in place.

In light of the above amendment history, the concept of 'cargo entry fee' itself is an IBDR loan agreement.

As introduced for implementation, it is clear that the object of the collection is "cargo" and the remaining concept is only the object of the collection.

It seems that the sign seems unclear. In addition, the use of the "entry Fee" as provided by the Harbor Act No. 2874.

The entry into port is specified as a kind of royalty, but in light of its name and the form of regulation.

Entry into an port subject to collection of 'ship' and 'cargo to be loaded' from an incoming vessel, respectively.

There was money that is imposed on the comprehensive use of harbor facilities.

Furthermore, the date of abolition of the Act, No. 2874, which was enforced on January 31, 1976, as of January 31, 1976.

The Harbor Act requires the collection of fees for the use of harbor facilities, but is collected by the management agency on the basis of entry.

on May 1, 1975, the Harbor Act, prior to May 1, 1975, newly established a number of ships and freight charges.

(1) If only a royalty has been provided, the amount of tonnage tax has been imposed in accordance with the ton tax law.

It is highly similar to a water system.

Then, gather circumstances that can be inferred from the history of the amendment of the Harbor Act; and

Cargo entry fees prescribed by the Harbor Act, No. 2874, shall be charged for the specific use of the harbor facilities.

n The nature of money imposed on the entry into port and the comprehensive use of port facilities

It seems that the majority opinion of the above en banc decision seems that the freight is a port facility using sea route.

At this point, this position also seems to be subject to the charge of cargo entry fee, focusing on the fact that it is the object of the charge.

It seems that the characteristics of the cargo entry fee prescribed by the Harbor Act No. 2874 are reflected.

However, the laws and regulations of the current Port Authority and Port Authority do not impose the entry fees separately.

C. Rather, use of harbor facility usage fees under the relevant statutes by dividing them into vessel charges, freight charges, etc.

The current rates are different depending on the function and scale of port facilities as seen earlier.

Use of harbor facilities by the Port Authority not adopting the concept of port fees under the former Port Authority Act.

It is not clearly known whether the fees overlap with the fees, but the fees for the use of the port facilities are the fees.

Under the framework of the existing laws and regulations, the concept that cargo is comprehensively used for port facilities is greater

It is difficult to maintain the present provision. The instant provision also causes any mode of cargo in a water zone facility which is a port facility.

in light of the history of the amendment of the Harbor Act, it is also stipulated under the premise that the harbor was used.

The validity of this is low.

6) Sub-decisions

Thus, the fee for the entry into and departure from port facilities, which is the fee for the use of harbor facilities, shall be the harbor facilities that load

It is reasonable to deem that the tax must be imposed only when used, and accordingly, the rate calculation of the provision of this case

Part of the standard applicable to the Port Authority, which includes the area of the facility subject to the collection of cargo charges;

It is judged that it is illegal and invalid by deviating from the scope of delegation of the collection of such user fee.

(c) Facts of recognition;

1) The chief of the Incheon Regional Maritime Affairs and Fisheries Office shall assign No. 2003 - 64 of the notification of August 28, 2003 to the Plaintiff’s interest-oriented power generation.

The port facilities installed for the operation of the lawsuit, and the routes of the port of the port to the field of the interest power plant.

notice of the designation and public notice as port facilities outside the harbor area for gambling areas, routes, etc.;

With respect to port facilities, permission for use of port facilities at the time of entering or departing from ships or cargoes under the notice of this case.

The application and the payment of user fees were requested.

2) The head of the Incheon Regional Maritime Affairs and Fisheries Agency (the Incheon Regional Maritime Affairs and Fisheries Agency) thereafter (in February 2, 2008, person due to reorganization;

on January 2015, 2015, the name was changed to the Incheon Regional Maritime Affairs and Fisheries Office.

In other words, the name was changed to the other hand, and on May 23, 2008, the date of the port in relation to the plaintiff's Youngjin 3 and 4, 2008

A request for a new additional designation and notification shall be additionally designated and publicly notified as port facilities outside the boundaries of the Incheon Port.

In this regard, it was requested to consult with the defendant about matters related to port facility usage fees.

3) The port of entry into the Incheon Port used by the vessel to enter the port of this case.

Ro. ',' 'borage of a funeral facility' is a harbor facility outside the Incheon Port Port Port Authority by the Incheon Regional Maritime Port Authority.

The number of ships entering the port facilities of this case shall be the same as that entering the Incheon Port.

Departure from the port facility of this case after entering the port facility of this case through the Do, after unloading the cargo from the port facility of this case.

Afterward, it becomes possible to go up according to the water supply system by visiting immediately before the entry of the Incheon Port.

4) The Minister of Land, Transport and Maritime Affairs on August 16, 2011, Article 4(3) of the Port Authority Act and Article 2 of the Enforcement Decree of the same Act.

The Minister of Land, Transport and Maritime Affairs shall designate and publicly notify harbor facilities under the jurisdiction of the harbor project (public notice of the Ministry of Land, Transport

2011 - 461), and the port facilities of this case (air routes and anchorages, which are water zones of interest-driven power plants)

In the case of a harbor facility outside the harbor area, which is a water facility or mooring facility, for man-fin, tin-fin, tin-ball, water quarb;

The head of Incheon Regional Maritime Port Office was designated and publicly notified as port facilities under the jurisdiction of the defendant. In addition, the head of Incheon Regional Maritime Port Office April 2014.

3. To avoid the police officer’s duty of managing and operating the Incheon Port Facility and collecting the user fee.

Jv) port facilities within and outside the Incheon Port Port Port Area (sea routes, anchorages, which are facilities of any interesting power plant);

The right to manage lin, which is a mooring facility, lin wharfs, lin wharfs, lin wharfs, lin wharfs, water wharfs, free of charge.

Ministry of Justice (Extension).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 5, 6, Eul evidence Nos. 2 through 4, 6, 14 (with a number)

the purpose of each entry, as a whole, of the entire pleadings;

D. Determination

1) The defendant used the port facilities of this case owned by the plaintiff for itself.

With respect to the assertion that user fees cannot be imposed and collected

In this case, the disposition of this case imposes cargo entry and departure fees out of the port facility usage fees.

J. However, there is no dispute that the mooring facilities of the instant port facilities are installed by the Plaintiff.

According to the provisions of this case, cargo entry and departure fees at issue in this case are "water area facilities" and "port transit time."

It is to be imposed on the "cargo" among the cargo storage and disposal facilities. The port facilities of this case are the port facilities of this case.

Of those designated and publicly notified as port facilities outside the port area of Incheon, the water facility, mooring facility, navigation support

Since the above cargo entry fee is a facility, it is ultimately imposed on the water zone facilities of the port facility of this case.

The sea route and anchorage, which is a facility of the water zone, refer to the water surface itself.

The plaintiff cannot be viewed as holding ownership. If so, the other plaintiff's premise is different.

Sectoral argument is without merit.

2) As to the assertion that the Defendant cannot be deemed to have managed the harbor facilities in the jurisdiction of the court

No. 13 and No. 15 (including each number) shall be added to the facts found earlier.

In full view of the following circumstances, the Defendant’s port outside the port area of Incheon port

It is deemed that the facility designated as a facility manages the water zone of the port facility of this case.

It is reasonable to conclude that the other plaintiff's assertion on this premise is without merit.

(1) According to the Port Authority Act, the Port Authority shall exercise the jurisdiction of the Port Authority over the harbor area and its substitute.

Port Authority (Article 4(3) of the Port Authority Act), other than port zones prescribed by Ordinance, is a port facility, etc. (Article 4(3) of the Port Authority Act).

"Port facilities, etc. outside a harbor zone prescribed by Ordinance of the Ministry of Oceans and Fisheries" shall be facilities outside a harbor zone.

Water zone facilities and facilities among the basic facilities under Article 2 subparagraph 5 (a) of the Harbor Act designated and publicly notified by the Minister for each construction;

(Article 2 subparag. 1 of the Enforcement Decree of the Port Authority Act). The Minister of Land, Transport and Maritime Affairs shall include mooring facilities (Article 2 subparag. 1 of the Enforcement Decree of the Port Authority Act).

When designating and publicly announcing harbor facilities under the jurisdiction of harbor projects pursuant to the above Enforcement Decree, this case

Sn. Facilities (Sea routes and anchorages, which are water facilities of field of interest-driven power plants, stone-fin, stone-fin, stone-fining facilities, water, etc.);

The State of a port under the jurisdiction of the defendant as a harbor facility outside the port area outside the water zone facility and mooring facility of Eul;

Since the port facilities of this case are designated and publicly announced as snow, they constitute port facilities under the jurisdiction of the defendant.

Unlike otherwise, Article 30(4) of the Harbor Act, Article 27 of the Enforcement Decree of the same Act, Port Authority

Article 30(2) and Article 14 of the Enforcement Decree of the same Act shall be exempted from the fees for the use of harbor facilities.

subsection (b) does not constitute a case.

(2) The Port Authority under Article 4 (2) and (3) of the Port Authority Act shall develop and manage harbor facilities;

The jurisdiction in charge of affairs concerning the operation shall be trade ports and port facilities prescribed by Presidential Decree.

Since the jurisdiction of harbor works is subject to the general and abstract jurisdiction of port facilities.

An area in which affairs concerning development, management, and operation are performed may be deemed to mean an area.

③ On April 3, 2014, immediately before the date of the instant disposition, the Defendant is from the Administrator of the Incheon Regional Maritime Port Office.

The Incheon Port Port Port Port Port Area to manage and operate the Incheon Port Port Facility and to collect user fees.

The right to manage the harbor facilities within and outside of Korea has been leased without compensation (Extension).

(4) On June 1, 2007, the Defendant shall remove abandoned ships and sunken objects from the chief of the Incheon Regional Maritime Affairs and Fisheries Office.

The defendant is subject to transfer of the maintenance and management of the water facilities, such as maintenance and dredging.

(1) It is confirmed that he/she is in charge of the maintenance and management of harbor facilities within his/her jurisdiction;

3) A water facility, although the cargo cannot be deemed to have used the facilities of the Incheon Sea Area.

As to the assertion that the Defendant imposed the cargo entry fee on the ground that it was used.

In full view of the above recognized facts and the interpretation of the relevant laws and regulations, anchorages and persons

The entry route of the Incheon Port is a harbor facility outside the harbor zone, and the defendant uses the facility.

of this case, the waters, facilities, and boundaries of the port facilities of this case are entitled to impose a fee for use;

It is recognized that the facilities, etc. have been designated and publicly notified as port facilities outside the harbor area of the Incheon port.

According to the provision of this case (excluding the part which is deemed to be invalid as above), cargo entry and departure fees shall be referred to as "port entry and departure fees."

Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs and Trade, the Ministry of Foreign Affairs and Trade, and the Ministry of Foreign Affairs, the Ministry of Foreign Affairs,

the subject of the imposition. However, the subject of the imposition is excluded by the Plaintiff, other than the water zone facilities.

Designation and public notice of the defendant's port facilities that load and unload water, i.e., the harbor area outside the Incheon port;

The plaintiff did not have any evidence to acknowledge that he used the port traffic facilities and the cargo storage facilities.

This part of the argument is justified.

E. Sub-committee

Thus, the disposition of this case is unlawful since it is not based on its legal basis. Thus, the plaintiff's remaining assertion

(2) The revocation must be made without examining the case.

6. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the ground of the ground.

The judgment of the court of first instance that dismissed the plaintiff's claim for this part of this part shall be justified by different conclusions.

C. Therefore, the plaintiff's appeal against this is accepted and the decision of the first instance against the plaintiff as to this.

The part is revoked and the disposition of this case is revoked, and it is so decided as per Disposition.

Justices Kim Heung-hoon

Judges Kim Gung-sung

The number of judges

1) However, on March 31, 2014, at the time when the Defendant notified the Plaintiff of the change in the rates of port facility usage fees, the instant notice was cited as the grounds for the notification (Article 1).

As seen in Section 5-B(3) below, the direct basis for the instant disposition is not the instant notice, but the instant provision.

However, Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall take a measure when it takes a disposition.

- The basis and reasons for such action shall be presented to the applicant, and in general, the applicant - the party shall specify the basis provisions, etc.

(1) If a party has presented a reasonable ground to the extent that it can be known in making a disposition rejecting a

Even if the specific clauses and reasons are not specified, the disposition can not be deemed to be unlawful due to such failure (and the reason therefor)

In light of the same content as the notice of this case and the provision of this case are identical to the notice of this case, the court's 2000Du8912 delivered on May 17, 2002

It is difficult to view that there is procedural error even if the decision was not presented as a basis and was mistakenly presented by the public notice of this case.