[1] The legal nature of permission for implementation of harbor works (=the discretionary act of an administrative agency) and the standard for determining the legality of the above permission (=the abuse of discretionary power)

[2] In a case where the administrator of a regional maritime affairs and port office, and the administrator of a regional maritime affairs and port office submitted only a part of the documents required in the public notice of the designation plan of a non-management agency, and expressed that he did not participate as a general competitor because he did not apply for the designation of a project executor under the above public notice, and excluded the company Eul from the selection procedure and the company Eul was selected as a project executor and made a disposition to permit the execution of the project, the case holding that the above disposition

[1] Article 9 (2) of the former Harbor Act (amended by Act No. 8628 of Aug. 3, 2007); Article 27 of the Administrative Litigation Act / [2] Article 9 (2) of the former Harbor Act (amended by Act No. 8628 of Aug. 3, 2007); Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 98Du6272 delivered on September 8, 1998 (Gong1998Ha, 2435)

New Chang Construction Co., Ltd. (LLC, Kim & Kim LLC, Attorneys Shin Hyun-chul et al., Counsel for the defendant-appellant)

Commissioner of the Regional Maritime Affairs and Port Office

ZETex Co., Ltd. (Law Firm Rated, Attorneys Lee Do-won et al., Counsel for the defendant

Gwangju High Court Decision 2010Nu268 decided September 7, 2010

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. A non-management authority’s permission to implement a harbor project is an act of establishing a specific person’s right, and there is no provision regarding the criteria for permission under the former Harbor Act (amended by Act No. 8628 of Aug. 3, 2007) and the Enforcement Decree thereof, and thus, it belongs to the discretionary act of an administrative agency. The guidelines for handling affairs, which set the criteria for permission, are merely an internal rules for handling affairs within the administrative agency, which are the criteria for exercising discretionary power, and thus, it ultimately depends on the determination of whether to abuse discretionary power (see Supreme Court Decision 98Du6272, Sept. 8,

2. According to the facts established by the court below and its adopted evidence, the defendant announced the non-management authority of September 21, 2007 (hereinafter referred to as the "public notice of this case") as a non-management authority of the harbor project (hereinafter referred to as the "project operator") on the public notice of September 21, 2007, and the plaintiff filed an application for designation with the defendant on October 31, 2007, alleging that the project operator is a person with preferential interests or rights as the project operator of the project of this case pursuant to the relevant Acts and subordinate statutes, and only one copy of the project plan among the documents stipulated in the public notice of this case is submitted and other documents such as written pledges, written statements are not submitted. The defendant requested that the plaintiff submit to the plaintiff about the application of this case by November 5, 2007 as to whether the project operator would make an application for designation under the public notice of this case. The plaintiff is merely a neighboring land owner to whom the plaintiff obtained a reclamation license of this case, and the defendant is not entitled to participate in the public notice of this case.

In light of the legal principles as seen earlier, as to the Defendant’s question whether the Plaintiff submitted only a part of the documents to be submitted in the public notice of this case, and whether the Plaintiff applied for the public notice of this case, the following facts are examined: (a) in light of the legal principles as seen earlier, the Defendant deemed that the Plaintiff did not apply for the designation of a project implementer according to the public notice of this case against the Plaintiff, and excluded the Defendant from the selection procedure; and (b) accordingly, the Defendant’s Intervenor was selected as the project implementer of the instant construction; and (c) accordingly, the Defendant’s each disposition against the Intervenor was erroneous in the fact-finding that is the basis for exercising discretionary power, or was abused or abused from the scope of discretionary power, such as the principle of fairness and proportionality.

Nevertheless, the lower court, based on the circumstances indicated in its reasoning, determined only on the motion of the Intervenor joining the Defendant, and determined that the Defendant’s each disposition of this case was unlawful, following the Defendant’s selection of the project implementer and the instant construction permission. In so doing, the lower court erred by misapprehending the legal doctrine on judicial review of discretionary action, which affected

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)