2015Guhap63693 Nullification of a disposition imposing a harbor facility user fee

Eastern Co., Ltd.

The Commissioner of the Bupyeong-gu Port Office

December 8, 2015

February 2, 2016

1. In the instant lawsuit, the part concerning the fee for the use of harbor facilities exceeding KRW 3,574,563,016 among the parts requesting the confirmation of nullity of the imposition of the fee for the use of harbor facilities by May 2, 2013 shall be dismissed.

2. The Defendant’s imposition of KRW 1,988,659,200 on the Plaintiff and imposition of KRW 3,860,895,310 on the charge of the use of harbor facilities on February 28, 2013 and the imposition of KRW 3,574,563,016 on the charge of the use of harbor facilities on May 2, 2013 are invalid.

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

The Defendant confirmed that the imposition of KRW 1,988,659,200 for the use fee of harbor facilities on February 28, 2013 against the Plaintiff and the imposition of KRW 3,860,895,310 for the use fee of harbor facilities on May 2, 2013 are all null and void.

1. Details of the disposition;

A. In accordance with the Industrial Sites and Development Act (hereinafter “Industrial Sites Act”), the Plaintiff, a company running the iron business, obtained approval of an implementation plan for the establishment of a high zone development project for an Asan National Industrial Complex (hereinafter “the instant project”) with the content that an industrial complex is developed by reclaiming the entire sea area of the Goak-si Goak-si, Do Governor pursuant to the Industrial Sites and Development Act (hereinafter “Industrial Sites Act”). Since the said implementation plan has been amended several times on December 27, 2012, the area of the instant project site was 413,645.6m, and the project implementation period was 196 to 2012.

B. On February 28, 2013, the Defendant imposed on the Plaintiff the fee for the use of harbor facilities (water) pursuant to Article 30(3) of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter the same shall apply) and Article 8 of the Regulations on the Use of and Rent for the Use of Harbor Facilities under Trade Agreements (hereinafter referred to as the “instant Public Notice”), on the ground that, with respect to the implementation of the instant project, the Plaintiff should pay to the Plaintiff the fee for the use of harbor facilities (water) from the date of approval of the implementation plan until the project operator acquires the ownership of reclaimed land, KRW 414,304 meters (hereinafter referred to as “sea area after February 27, 2008) from February 26, 2009 to February 26, 2009.

C. In addition, on May 2, 2013, the Defendant calculated, on the ground as above, the user fee for the harbor facilities from February 27, 2008 to March 31, 2008, from 31,228,572 won, from February 27, 2008 to April 31, 208, from February 10, 2008 to April 1, 2009, the user fee for the harbor facilities from 54,48,117 won, from February 27, 2008 to 1, 205, from 15, from 208 to 305, 208, 208, 308, 205, 308, 205, 208, 305, 308, 258, 205, 205, 205, 208, 315, 2015, 25, 31.6

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 7 (including a provisional number), the purport of the whole pleadings

2. Ex officio determination

In the instant lawsuit, the part concerning the legitimacy of the usage fee for harbor facilities exceeding KRW 3,574,563,016 among the part concerning the claim for confirmation of nullity of the imposition of usage fee for harbor facilities of May 2, 2013 is examined ex officio.

The Defendant imposed a charge of KRW 1,98,659,200 on the Plaintiff from February 28, 2013 to February 26, 2009. However, on May 2, 2013, imposing an additional charge of KRW 3,860,895,310 on the Plaintiff for the use of harbor facilities from February 27, 2008 to March 11, 2013, the Defendant accepted the Plaintiff’s request for a reduction of or exemption from the usage fees of harbor facilities from February 27, 2008 to March 11, 2013. In full view of the respective descriptions and arguments stated in subparagraphs 4 and 6 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 21698, Aug. 21, 2009; Presidential Decree No. 21698, Aug. 21, 2009; Presidential Decree No. 220130, Mar. 23, 20197>

According to the above facts, the Defendant’s imposition of KRW 3,860,895,310 on May 2, 2013 against the Plaintiff of KRW 286,332,294, which was reduced or exempted as above, shall be deemed to have been revoked ex officio. As such, the Defendant’s claim for confirmation of invalidity of the imposition of fees for harbor facilities corresponding thereto is without interest in legal action, as it claims confirmation of invalidity of the imposition of fees for harbor facilities.

Therefore, on May 2, 2013, the part regarding the charge for the use of harbor facilities exceeding KRW 3,574,563,016 (i.e., KRW 3,860,895,310 (i.e., KRW 286,332,294) is unlawful (hereinafter “instant disposition”), among the part regarding the imposition of the charge for the use of harbor facilities by the Defendant against the Plaintiff on May 2, 2013 and the part concerning the imposition of the charge for the use of harbor facilities as of February 28, 2013, excluding the above revoked ex officio as of May 2, 2013).

3. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons, and its degree of illegality is serious and clear, and is void as a matter of course.

1) Since the Defendant did not give any prior notice to the Plaintiff while rendering the instant disposition, the instant disposition violates Article 21(1) of the Administrative Procedures Act.

2) The term “water zone facilities” under Article 2 subparag. 5 (a) (i) of the former Harbor Act, which are subject to a charge for the use of harbor facilities, refers to sea routes, anchorages, oil refineriess, ship wharfs, or other facilities completed to the extent equivalent thereto. The sea zone of the rear site is merely a sea zone where the Plaintiff occupies and uses the harbor facilities in a state where the facilities have not yet been completed. Thus, it cannot be deemed that it falls under “water zone facilities” under Article 2 subparag. 5 (a) (i)

3) The former Harbor Act and its Enforcement Decree expressly stipulate that only the use of harbor facilities (excluding navigational aids) under the former Harbor Act may impose usage fees for harbor facilities, and only matters concerning the calculation of the usage fees for harbor facilities are delegated to the public notice of this case. However, Article 8(1) [Attachment 1] 1-4(d)(5) of the Public notice of this case, which served as the basis of the disposition of this case, provides that usage fees for harbor facilities may be imposed in cases where the use of harbor facilities (water facilities) beyond the delegated scope as well as simple use of sea areas for the installation of harbor facilities (water facilities) beyond the delegated scope. Accordingly, the public notice provision of this case clearly deviates from the delegated scope of the mother Act, and is null and void in violation

4) According to Article 30 of the former Harbor Act, only a person who uses the pertinent harbor facility after obtaining permission to use the harbor facility. The Plaintiff does not constitute a person subject to charges for using the harbor facility on the grounds that he/she obtained separate permission to use the harbor facility on the sea area behind the harbor

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the first argument

A) According to Article 21(1) and (4) of the Administrative Procedures Act, when an administrative agency imposes an obligation on a party or imposes a disposition restricting his/her rights and interests, it shall notify the party concerned of the fact that the grounds for such disposition, contents and legal basis thereof, the purport that he/she may present his/her opinion, and the method of disposal when he/she fails to present his/her opinion (Article 21(1)). Provided, That in cases where an urgent disposition is necessary for the safety and welfare of the general public, where a certain disposition should be taken when any qualification required by statutes, etc. is nonexistent or extinguished if it is objectively proved by a court’s trial, etc., the administrative agency may choose not to give an advance notice under paragraph (1) only in any of the cases where it is deemed difficult or clearly unnecessary due to the nature of the pertinent disposition

B) The instant disposition is a disposition imposing the Plaintiff the obligation to pay fees for the use of harbor facilities. Thus, barring any special circumstance, the Defendant must give prior notice of the instant disposition to the Plaintiff pursuant to Article 21(1) of the Administrative Procedures Act, barring any special circumstance. It is insufficient to recognize that the Defendant given such prior notice to the Plaintiff with respect to the instant disposition solely on the evidence Nos. 2 and 4. There is no evidence to acknowledge otherwise.

On the other hand, the defendant filed an administrative appeal against the defendant on January 11, 2012, stating that the project of this case was included in the national industrial complex plan under the Industrial Sites Act and did not constitute a harbor construction project, and that the fees for the use of harbor facilities under the former Harbor Act were not imposed on the rear site. On the other hand, the Dong-gu International Government Corporation, which implemented the project of this case along with the plaintiff, filed an administrative appeal against the defendant on January 11, 2012, stating that the project of this case, which is a harbor construction project in the front area of the Hanjin-si, Seojin-gu, Hanjin-gu, at the time, was located in the vicinity of the ocean area adjacent to the hinterland site, and that the project of this case would be different from the project of this case. On July 24, 2012, the above appeal was accepted, and it is clearly difficult to view the plaintiff's opinion that this case's prior notice constitutes an exception under Article 21 (4) 3 of the Administrative Procedures Act.

Therefore, there is procedural error that does not give prior notice under Article 21(1) of the Administrative Procedures Act.

C) However, in order for an administrative disposition to be deemed null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient. The defect must be objectively apparent and serious in violation of the essential part of the law. In determining whether the defect is significant and apparent, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du11937, Sept. 21, 2007).

Based on the above legal principles, the following circumstances, i.e., the Plaintiff, along with the Plaintiff, filed an administrative appeal against the Defendant on January 11, 2012 (hereinafter referred to as the “administrative appeal of this case”) regarding the integration of the exclusive harbor development project and the project cost of this case, and the Defendant’s disposition of this case to 20 days before and after the 20th of July 24, 2012, on the premise that “the Defendant would cancel the approval of the completion of exclusive harbor development project and settle the project cost of this case,” which is based on the premise that “the approval of the completion of the industrial complex development project of this case to 20 days before and after the 20th of December 27, 201,” which is the premise that the above disposition of this case to 10 days before and after the 20th of July 24, 2012, which is the premise that the above disposition of this case to 20 days before and after the 20th of December 27, 20198.

2) As to the second argument

A) According to Article 2 Subparag. 2, 3, and 4 of the former Harbor Act, the term “harbor zone” refers to the maritime area and land area of a harbor under the international trade port and coastal port, and Article 2(1) [Attachment I] of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same shall apply) provides that the area of the sea as the trade port shall be prescribed as the trade port, and Article 2(1) [Attachment I] of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same shall apply) provides that the area of the sea shall be 37.02 degrees 05.28 degrees North latitude, 126.44 degrees 50.53 degrees east-do, Chungcheongnam-do, Chungcheongnam-do, west-do (N. 36.54 degrees 30, 126.5 degrees 5 seconds).

In addition, Article 2 subparagraph 5 of the former Harbor Act provides that "harbor facilities" means facilities in any of the following harbor areas, and facilities outside the harbor areas, which are designated and publicly notified by the Minister of Land, Transport and Maritime Affairs, as those designated and publicly notified by the Minister of Land, Transport and Maritime Affairs. Article 2 subparagraph 5 of the former Harbor Act provides that "a basic facility among harbor facilities, such as anchorages, anchorages, oil wharfs, and ship wharfs," and Article 30 (1) and (3) of the former Harbor Act provides that "the Minister of Land, Transport and Maritime Affairs, a harbor facility operator, or a lessee may collect user fees from those who use the harbor facilities after obtaining permission from the Minister or entering into a lease agreement

B) According to the purport of the evidence Nos. 7 through 14 of the former Harbor Act and its Enforcement Decree as a trade port under the former Harbor Act and the former Enforcement Decree thereof, there exists a sea route and anchorage used as a ship’s entry into and departure from a port within the harbor area (marine area), and the surrounding site area was included in the port area of Pyeongtaek and Jin, while performing reclamation works according to the instant project, the Plaintiff entered the surrounding site area of the construction site using the above sea route. During this process, the Plaintiff opened and used private navigational aids from the competent authority to establish and use a private navigational aid for some waterways among the surrounding site areas, which is located in the surrounding site by obtaining permission from the competent authority for installation of private navigational aids for the passage of a certain waterway among the marine areas of the site at the site at the site at the site at the site at the site at the site at the port, and it can be recognized that there was a fact that part of the remaining part of the sea area of Pyeongtaek and Jin-jin located in the south area due to such geographical characteristics was used by the Plaintiff’s captain.

In addition, in addition to the above facts, the plaintiff is obligated to pay occupation and use fees for harbor facilities as usage fees for harbor facilities under the use of the above harbor facilities, since the plaintiff uses the "water zone facilities" under subparagraph 5 (a) (i) of Article 2 of the former Harbor Act, which are the water zone facilities under the former Harbor Act, in order to implement the project of this case in the rear site area, such as the navigation of ships entering and departing from the harbor area, the route of navigation of ships entering and departing from the harbor area, the location of wharfs, etc., and it seems that the establishment of such facilities is not necessarily required to be completed as artificial facilities.

3) As to the third argument

The main sentence of Article 30 (1) of the former Harbor Act provides that "a person who intends to use harbor facilities (excluding navigational aids; hereafter the same shall apply in this Article) may use harbor facilities with permission from the Minister of Land, Transport and Maritime Affairs, as prescribed by Presidential Decree, or with a person delegated or entrusted by the Minister of Land, Transport and Maritime Affairs or by the Minister of Land, Transport and Maritime Affairs (hereinafter referred to as "operator of harbor facilities") or with a person who has entered into a lease contract (hereinafter referred to as "lease contractor") or with consent from the person who has entered into the lease contract concerned (hereinafter referred to as "lease")," and the main sentence of paragraph (3) of the same Article provides that "the Minister of Land, Transport and Maritime Affairs, a harbor facility operator, or a lessee may collect rental fees from persons who use harbor facilities pursuant to paragraph (1)." Article 28 (5) of the former Enforcement Decree of the Harbor Act provides that "the types of rental fees shall be prescribed by Presidential Decree, in consideration of the type of vessel charges, freight charges (subparagraph 2), passenger terminal charges (subparagraph 3), and exclusive charges for use."

Furthermore, according to the delegation of the former Harbor Act and its Enforcement Decree, the public notice of this case provides for the types, rates, and standards of the usage fees of harbor facilities under Article 8(1) [Attachment Table 1]. The public notice of this case is one of the types of exclusive usage fees for harbor facilities, which provides for the occupancy fees of the water area as one of the facilities subject to collection of the usage fees of the water area, as "water facilities", (a) usage fees under Article 13 of the Public Waters Management and Reclamation Act, and (b) usage fees where non-management authority installs harbor facilities, such as stone not belonging to the State using a sea zone during the harbor area with the permission to implement harbor works under Article 9(2)

In light of the language, purport, and system of such statutes, the part of the notice provision of this case that sets the rate of the usage fees for the water zone is limited to the part of the ‘use fees pursuant to Article 13 of the Public Waters Management and Reclamation Act', and the ‘use fees for the installation of harbor facilities, such as a stone, etc. not belonging to the State by using a marine area during the harbor zone with the permission for the execution of harbor works pursuant to Article 9(2) of the Act is not just an extension of the scope subject to the collection of the usage fees for the water zone but also an example of the usage fees for the water zone facilities subject to the collection.

It is reasonable to see that it is.

Therefore, the notice provision of this case is only applicable to the occupation and use of a water zone among harbor facilities, not to apply to the use of a simple sea zone, which is not a water zone facility, for the installation of a harbor facility. Thus, the notice provision of this case cannot be deemed null and void beyond the delegation scope of the upper law. Therefore, the plaintiff'

4) As to the fourth argument

A) According to the provisions of the main text of Article 30(1) and the main text of Article 30(3) of the former Harbor Act, the person subject to the imposition of fees for the use of harbor facilities is the person who uses the pertinent harbor facilities after obtaining permission, etc. from

However, according to the purport of the evidence Nos. 1 and 2 and the purport of the entire pleadings, the Plaintiff obtained approval from the director of the Incheon Regional Maritime Affairs and Fisheries Office for the implementation plan for the construction project of a high zone of an Asian Industrial Complex, and accordingly obtained permission for the use of harbor facilities in relation to the exclusive harbor development project, and can be recognized as having not obtained permission for the use of harbor facilities in relation to the marine area of the hinterland for the implementation of the instant project. Since there is no permission for the use of harbor facilities in relation to the marine area of the hinterland for the instant project, the requirements for the imposition of the user fees for harbor facilities are not satisfied due to the lack of requirements for the use of harbor facilities in relation to the marine area

On September 11, 1996, the defendant opened and used a private navigational aid in the vicinity of the Jin-gun, Chungcheongnam-gun, Chungcheongnam-gun, a harbor zone adjacent to the navigational route of Pyeongtaek-gu, Chungcheongnam-do, Chungcheongnam-do. In light of the following facts: (a) around December 27, 2012, the main part of the exclusive development project and the implementation plan that covers the entire marine area of the hinterland site as one business area is revised and publicly announced; (b) although the plaintiff is alleged to be a person who has obtained permission to use harbor facilities under Article 30(1) of the former Harbor Act, the permission to use the private navigational aid or authorization of the implementation plan cannot be deemed to include the permission to use the private navigational aid or the permission to use the harbor facilities accordingly; and (c) the above assertion by the defendant cannot be deemed to have obtained permission to use the harbor facilities. Therefore, the above assertion by the defendant is without merit.

Ultimately, the instant disposition imposing user fees for harbor facilities on the Plaintiff who does not fall under the subject of imposition due to a lack of the requirements for imposing user fees for harbor facilities under the former Harbor Act is unlawful, and its defect is a serious violation of the relevant laws and regulations and is objectively apparent. Therefore, the instant disposition should be deemed to be null and void.

B) Even if the instant disposition is null and void, the Defendant asserts that the instant disposition should be null and void only to the extent of the remainder, excluding the amount so deducted as above, as well as to the remainder of KRW 3,290,475,75,75,750, which remains after deducting KRW 1,400,000 from the amount of refund of harbor facility usage fees related to the exclusive harbor development project and the amount of the non-management authority’s total project cost, from the sum of KRW 5,90,51,350, which the Defendant imposed upon the Plaintiff pursuant to the instant disposition and the late payment charges therefor.

However, the defendant's assertion that the grounds as alleged above are nothing more than the details of liquidation of the balance of the fees for using harbor facilities that the plaintiff should pay according to the disposition of this case, and it does not affect the validity of the disposition of this case. Thus, the defendant's assertion that the scope of invalidation confirmation should be determined

3. Conclusion

Therefore, the part concerning the fee for the use of harbor facilities exceeding KRW 3,574,563,016 among the part concerning the claim for confirmation of nullity of the imposition of the fee for the use of harbor facilities from the instant lawsuit is dismissed as unlawful, and the remainder of the claim by the Plaintiff is justified and acceptable as it is so decided as per Disposition.

The presiding judge and the deputy judge;

Judges Kim Gin-A

Judges Lee Jae-han

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.