Han Young Industrial Co., Ltd. (Law Firm Barun Law, Attorneys Nayang et al., Counsel for the defendant-appellant)

Head of Sinpo Regional Maritime Port Office (Attorney Jung-ju et al., Counsel for the defendant-appellant)

December 20, 2012

Gwangju District Court Decision 2011Guhap2088 Decided November 24, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of rejection of the application for permission for execution of harbor works made on March 14, 201 by the non-management authority shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

○ The Plaintiff established and promoted a business plan with the content of assembling and producing ship blue block and plant cargo, etc. in a wooden harbor.

○ On August 20, 2010, the Simpo Port Co., Ltd. (hereinafter referred to as the “Simpo Port Co., Ltd.”) requested the Minister of Land, Transport and Maritime Affairs to approve the implementation of the “harbor equipment improvement plan for the efficient disposal of plant cargo” with the Plaintiff as the business owner, and the Minister of Land, Transport and Maritime Affairs, Sept. 27, 2010, with respect to the multi-purpose harbor site (hereinafter referred to as the “harbor site in this case”) located within a wooden Port Co., Ltd. (hereinafter referred to as the “instant harbor site”) with respect to the used area of 34,200 square meters, annual rent of 248,000 square meters, annual period of use, and period of use of 2016, respectively, and on August 31, 2010, the Defendant submitted a review opinion that there is no particular problem in the operation of the harbor even if he/she approves the implementation of the said project with respect to the above request for approval

○ Accordingly, on September 28, 2010, the Plaintiff purchased a total of 34,919.2 square meters of land size (hereinafter “the hinterland of this case”) other than 13,000,000 square meters (hereinafter “the hinterland of this case”) located in the hinterland of the Mapo-si Port from the Mapo-si (ju), and entered into a contract for the use of the harbor site and the use of harbor facilities with the content that the Plaintiff would use the instant harbor site and harbor facilities by December 31, 2016, respectively.

On October 25, 2010, the Plaintiff and the Defendant, Mapo-si, and Mapo-si (ju) concluded an investment agreement with the content that “the Plaintiff shall make an investment in total of 36 billion won, including the installation of Mebble block, alleys, and offshore plants, in the instant harbor site and its hinterland site, and shall make every effort to provide administrative and financial support for the Plaintiff’s successful investment.”

After ○, on February 8, 2011, the Plaintiff filed an application with the Defendant for permission to implement harbor works with a non-management authority (hereinafter referred to as “application for permission to implement the instant harbor works”) with a view to assembling and producing vessel block, plant cargo, etc. on the instant harbor site, but the Defendant rejected the application on March 14, 201 for the following reasons.

The reason for disposal - The vicinity of the construction area for the installation of a Baba port (c) in the Baba port is scheduled to be commenced in 2011 as a motor vehicle side in accordance with the port basic plan, and the new port finance branch, which is approximately 600 meters away from the planned site for the implementation of the project, is dealing with the export motor vehicle. In this regard, it is anticipated that the export motor vehicle owner of the vehicle will have an impact on the Baba development plan as it is inevitable to move to another port due to unexpected causes of dust (metallic and paint) at the time of the installation of the facility, and it is anticipated that there will be a significant obstacle to the operation of the Baba port, such as a strike due to the outbreak of the port-related industry (e.g., ferries) and a strike due to the resistance by the port workers at the time of the transfer of the export vehicle, which is the main force of the Baba port.

In addition, the Plaintiff filed an application for a construction permit to construct a new factory for the purpose of assembling blue, etc. on the rear site of this case at the time on March 14, 2011. However, on April 18, 2011, the Plaintiff rejected the application for a construction permit on the sole ground that the blug city might cause damage to a motor vehicle for the export of a flag vehicle of a company nearby the factory (hereinafter referred to as “abandoned vehicle”) by dust generated within the factory.

[Reasons for Recognition] Facts without dispute, entry in Gap's 1 to 10, 16 evidence (including branch numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) Whether a non-management authority's permission for implementation of a harbor project is binding

The non-management authority's permission for execution of harbor works is the binding act of an administrative agency. Since the plaintiff's permission for harbor works in this case satisfies all the requirements for permission under Article 9 (3) of the Harbor Act, such as complying with the third basic harbor plan, etc., the defendant is in violation of the obligation to permit the application for permission for harbor works in this case.

(2) The illegality of the instant disposition, which constitutes a disposition of dust arising from the process of work permissible under the Harbor Act,

Since the Minister of Land, Transport and Maritime Affairs has already approved the Plaintiff to assemble large steel structure, such as thought, entertainment, and design work, in the instant harbor site, the said work the Plaintiff intended is permissible under the Harbor Act. The Plaintiff’s application for permission for the instant harbor project is different from granting permission for the installation of Trancers in the instant harbor site. However, it is unlawful for the Defendant to take the instant disposition on the ground of dust arising from the process of construction of Trancers in the instant harbor site, rather than the dust arising from the process of installing Trancers in the instant harbor site.

(3) A deviation or abuse of discretionary authority

Even if the non-management authority's permission to implement a harbor project falls under discretionary action, ① the vessel block and plant cargo assembly and manufacture have been conducted during the period, there were no cases of environmental pollution damage caused by dust, etc., the Plaintiff sufficiently established measures to prevent dust damage to an automobile for export of an automobile located in the vicinity of the port site of this case, the Plaintiff's business of installing vessel block and plant cargo treatment facilities is expected to be helpful for the revitalization of wood bage ports and regional economy. If the application for permission to implement a harbor project of this case is rejected, the Plaintiff's public interest to be achieved through the disposition of this case is not significant, while the disposition of this case seems to be excessive, and the disposition of this case violates the principle of proportionality and the principle of proportionality, and thus, the Plaintiff's application for permission to implement a harbor project of this case is against the principle of equality and the principle of equality, and thus, the Plaintiff's application for permission to implement a harbor project of this case is against the principle of proportionality and the principle of equality.

(4) Violation of the principle of trust protection.

On September 27, 2010, the Minister of Land, Transport and Maritime Affairs approved the implementation of the "port equipment improvement plan and other minor profitability project for the efficient disposal of plant cargo" that the plaintiff applied to the Minister of Land, Transport and Maritime Affairs as the business owner, and the defendant concluded an investment agreement on October 25, 2010 with the plaintiff and the plaintiff, even if the project was approved by the Minister of Land, Transport and Maritime Affairs, not only submitted opinions that there is no problem in the operation of the harbor, but also entered into the investment agreement with the plaintiff on October 25, 2010. This constitutes the defendant's expression of public opinion, and even if the plaintiff trusted it and took follow-up measures in accordance with the above project implementation approval and the investment agreement with a considerable cost, it is against the principle of trust protection.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

(1) The current status, etc. of use of wooden harbors

○ The 5 lines are in operation, such as 1st, 3st and 3st and 1st and 1st and 5st and the port site of this case in which the Plaintiff wishes to install franchises are located within the appropriateness of item (c).

It is known that the 16% of the total water capacity in the wooden port as of 2010, and the 76% of the water capacity in the wooden port as of the 2010, the number of people engaged in the related industries is 15,720, and there is a regional economic inducement effect of 10.3 billion won per year by the month of 15,720.

(b) Civil petition systems, such as cryp vehicles;

○ The Plaintiff promoted the construction project of vessel blus and plant cargo treatment facilities in the instant port site and hinterland sites. As a result, it is feared that the Plaintiff would damage the Defendant’s motor vehicle for export waiting in the nearby financial flusium by metal and flusium generated at the instant port site. If the Defendant grants permission for the application for permission of the instant harbor works, he/she has expressed his/her opinion that he/she should actively review the transfer of the port of departure from the port of departure of the motor vehicle, and the subcontractor also filed a civil petition to the Defendant

○ On November 11, 2010, the Defendant demanded the Plaintiff to establish measures to prevent dust damage according to the plan to install Grand Cargo Treatment Facilities.

(3) Holding meetings to take measures to prevent decentralization, etc.

○ On December 20, 2010, the Defendant held a meeting to prevent dust damage when installing a new plant cargo treatment facility for the first new plant cargo, and the Plaintiff presented a plan to prevent dust damage that was self-established to an infant automobile subcontractor, etc. attending the meeting at that place.

Then, on January 12, 2011, the defendant held a meeting to prevent dust damage when installing a facility for the treatment of the second new plant cargo, and the plaintiff explained the plan for the prevention of dust damage to Jeonnam-do, Sejong-si, Mapo-si, and Mana-si, etc. present at the above meeting at that place and explained the plan again to supplement the advanced part later.

(4) Measures to prevent dust damage prepared by the Plaintiff

The measures to prevent dust damage by process submitted by the Plaintiff, along with an application for permission for the instant harbor works, are as follows.

The construction of a system to suspend work (open) at least 8 meters at the beginning speed of the average public morals and to stop work (top/plow/pamping/sure) at least 1.25 times at the maximum height of 1.25 times, and the maximum of 3 Myeon-top-picking and environmental-level cleaning vehicles and workers exclusively in charge of the environment, who are posted metal dust, mobile fire-proof-proof cleaning vehicles, and environmental-related cleaning vehicles, which are included in the main sentence of the same Article, by posting continuous floor cleaning and construction of a system to stop work at least 8 meters at the beginning speed of the average public morals :

(5) Cases, etc. of dust damage under woodbling ports and other ports

○ The fiscal brea car, which is used as the shipment site of the vehicle for export, is located around 600 meters from the port site of this case.

nine companies, including Samsung Heavy Industries, have dealt with large steel structure such as processing or assembling hull jus, etc. at a wooden port wharf from May 2005 to September 2010, and there is no reported fact that there was damage on a motor vehicle for export of a child in neighboring areas due to dust generated in the process.

○ In addition, around August 2008, cement Cement Co., Ltd. is operating cement factories on the side of the financial hub used by the Defendant with the permission of the non-management authority for the construction of cement dedicated structure with regard to the construction of cement dedicated structure from the Defendant, and there was no yet reported that there was damage to the motor vehicle for export in the above financial hub due to dust generated from the dust.

On the other hand, 3,00 won of 3,000 won of 3,000 won of 3,000 won of 3,000 won of 3,000 won of 3,000 won of lushes around July 2008.

(6) A basic harbor plan in a wooden port

According to the second basic harbor plan amended on December 27, 2006, the second basic harbor plan was planned to install the automobile wharfs adjacent to the instant harbor site, and week 1). At present, the construction of the automobile wharfs was commenced around 2011 and completed around 2015, adjacent to the instant harbor site.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 4, 5, 11, 13, 14, 17, Eul evidence Nos. 15 and 18, Eul evidence Nos. 2, Eul evidence Nos. 3-1, 2, Eul evidence Nos. 6, Eul evidence Nos. 7-1 and Eul Nos. 7-8, each fact inquiry results for Korean International Terminal Co., Ltd. and Malaysia Co., Ltd., and the purport of this court's on-site inspection results and all pleadings

D. Determination

(1) As to the legal nature of permission for execution of harbor works by non-management authorities

Whether a certain act constitutes a binding act or discretionary act is not uniformly defined, and it should be determined individually in accordance with the form, system, or language of the provision on the basis of the pertinent disposition. According to the provisions of Article 9(3) of the Harbor Act, a non-management authority’s permission to implement a harbor project is basically an administrative act that creates rights or gives profits to a specific person, and the requirements specified in each subparagraph of Article 9(3) of the Harbor Act are also an administrative act that uniformly established and uniformly established the specific criteria, and thus, there is room for discretion to an administrative agency. Thus, a non-management authority’s decision on whether to grant a permission to implement a harbor project of this case belongs to an administrative agency’s discretionary act. Thus, the Plaintiff’s above assertion is without merit.

(2) Whether the process of examining the permission of the instant harbor works can be used as a ground for disposing of the earthquake damage.

The following circumstances, which are acknowledged by the above-mentioned statutes and evidence Nos. 4 and 5, that are, the owner of a wooden harbor with the above approval from the Minister of Land, Transport and Maritime Affairs, pursuant to Article 14 (4) and (c) of the Act on Public-Private Partnerships in Infrastructure and the concession agreement with the competent authority at the time of designating the concessionaire of the public-private partnership project, the owner of a wooden harbor, which is the executor of the public-private partnership project, shall obtain the approval from the competent authority. The above project approval is not a project approved by the Minister of Land, Transport and Maritime Affairs when designating the concessionaire of the public-private partnership project, but a project for the installation and management of the green harbor, which is not a project approved by the Minister of Land, Transport and Maritime Affairs. The purpose of the above project approval is not to promote the installation and management of the 1st harbor project, and to ensure that the plaintiff is not obliged to obtain the permission of the non-management authority for the installation and management of the 3th harbor project, by stating the purpose of the construction and management of the 2nd harbor project.

(3) Whether the discretionary authority is deviates or abused or not

(A) In the case of discretionary act, the court shall examine only whether the pertinent act is deviation or abuse of discretionary power without drawing a separate conclusion by taking into account the room for determining the public interest based on the discretion of the administrative agency. The examination of such deviation or abuse of discretionary power is subject to the determination of mistake of facts, violation of the principle of proportionality and equality (see, e.g., Supreme Court Decision 2010Du21204, Dec. 23, 2010).

(B) Considering that the above facts are difficult to be recognized, Gap evidence 17, Eul evidence 21-2, and the non-party witness witness's testimony and pleading as to this case, even if the defendant cannot trust the service report submitted by the non-party professor Team at ○○ University, the plaintiff's work to install tampers in the port site of this case is likely to cause metal and paints with strawing work, and it is difficult to view that the non-party's construction work is likely to cause damage to nearby areas because it is difficult to say that the plaintiff's measures to prevent dust damage caused by the non-party's removal of the above 2-year-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-wide-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-based-based-type-type.

(4) Whether the principle of trust protection is violated

(A) To apply the principle of protection of trust to the acts of administrative agencies in general in administrative legal relations, first, the administrative agency should name the public opinion that is the subject of trust to the individual; second, the administrative agency's trust in the statement of opinion that is justifiable should not be attributable to the individual; third, the individual must act in trust to the individual; fourth, by the administrative agency's disposition against the above statement of opinion that is contrary to the above statement of opinion, the personal interest of the person who trusted the statement of opinion should be infringed; fifth, if an administrative disposition is taken in accordance with the previous statement of opinion, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du13592, Feb. 24, 2006, etc.).

(B) With respect to this case, the Minister of Land, Transport and Maritime Affairs approved the implementation of the "harbor equipment improvement plan and other minor profitability projects for efficient disposal of plant cargo" requested by the Minister of Land, Transport and Maritime Affairs, and submitted opinions to the Minister of Land, Transport and Maritime Affairs that there is no problem in the operation of the harbor even if the defendant approved the above project, and the defendant entered into an investment agreement with the plaintiff et al. to provide administrative and financial support to the plaintiff et al. for the successful investment of the plaintiff's business, although it is recognized as above, the above facts are recognized as follows: Gap evidence No. 5, Gap evidence No. 9-1, and evidence No. 16, and the purport of the whole arguments and arguments, which are recognized by the Minister of Land, Transport and Maritime Affairs as follows, it is difficult to consider that the above business approval of the Minister of Land, Transport and Maritime Affairs only approved the plaintiff's business to permit the above construction of this case against the plaintiff's new harbor construction project, and it is difficult to see that the defendant's new harbor construction project will be approved with the above public interest agreement and the above.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

[Attachment Form 7]

Judges Sick-do (Presiding Judge) and the South Sea of the Republic of Korea

1) The third basic harbor plan formulated on July 29, 201 also reflected the same plan as it is.

2) In the first instance, the Plaintiff applied for and withdrawn an appraisal as to the foreseeable injury due to the assembly and production of plant cargo, etc. in the instant harbor site.