(영문) 부산지방법원 2017.6.1.선고 2016구합23876 판결

1. On August 10, 2016, the Defendant’s revocation of the designation of a project developer related to the BY Stach Stak Stak Stak Stak Stak Stak Stak Stak Stak St

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. Designation, etc. of a project implementer for the plaintiff;

1) On March 31, 2008, Hyundai Industrial Development Co., Ltd. (tentatively named "Co., Ltd."), a consortium comprised of seven companies, such as Gyeongnam Bank, Gyeongnam Bank, Busan Bank, etc., proposed a public-private partnership agreement between the Defendant on March 31, 2008 and the Defendant (hereinafter referred to as "the instant project") pursuant to Article 9 of the former Act on Public-Private Partnerships in Infrastructure (amended by Act No. 10983, Aug. 4, 2011; hereinafter referred to as the "Private Investment Act"), designated a joint-private partnership agreement between the Defendant and the Defendant on October 28, 2010 as the subject of the instant urban management plan (hereinafter referred to as "the instant project"), with respect to the construction and operation of sports facilities, hotelss, and conventionss, etc. (hereinafter referred to as "the instant project"), and the project implementer has management and operation rights for 30 years (BTO-TO-O). 2).

Article 3 (Definitions of Terms)

1. Unless otherwise provided for in this Convention, the definitions of terms used in this Convention shall be as follows:

38. Appendix: Annexed documents to this Convention, such as cases of consultation between the competent authority and the concessionaire derived in the course of negotiations for the conclusion of this Convention, evidentiary materials, drawings and specifications, and financial models.

Article 8 (Duties of Project Implementer)

(3) Unless otherwise specified in this Convention, the project implementer shall revise the terms and conditions of loans or conditional loan agreements presented by creditor financial institutions, etc. at the time of submission of the project plan to the loan agreement until the application for approval of the implementation plan is filed

(4) Except as otherwise provided for in this Convention, a project operator shall, in principle, carry out the project at his own risk and expense under this Convention.

Article 17 (Design, Authorization, Permission, etc.)

(1) When a project implementer applies for the approval of an implementation plan, he/she shall perform and submit a shop design for the project facilities, including the matters conferred on the terms of the third party proposal announcement (including a written response, etc.), the project plan and this Convention, relevant Acts and subordinate statutes, and Appendix. In addition, the project implementer shall select a designer under the Construction Technology Management Act and have the designer perform the design supervision of the shop design. Provided, That the project plan shall apply only to cases where the project plan is applied as a supplementary project plan to implement

(2) If various authorization, permission, etc. and consultation are required in the execution of working plans (including modification thereof) under paragraph (1), the project executor shall handle them through consultation with the competent authority for his/her own responsibility and expenses.

Article 18 (Approval of Implementation Plans)

(1) The project executor shall file an application with the competent authority for approval of the implementation plan under Article 16 of the Enforcement Decree of the Act on Private Participation in Infrastructure (hereinafter referred to as the "Private Investment Act") within one year from the date this Convention is concluded: Provided, That where the competent authority deems it inevitable, the period may be extended only once within the limit of one year.

(2) Upon receipt of an application for approval of an implementation plan under paragraph (1), the competent authority shall verify whether the agreement between the parties to the agreement has been reflected in this Convention and, except in extenuating circumstances, notify the project implementer of the approval of the implementation plan under paragraph (1) within three months from the date of the application for approval of the implementation plan,

(3) Where the competent authority finds, as a result of reviewing the details of an application filed by the concessionaire for the approval of the implementation plan, that the agreement between the parties to the agreement has not been reflected in the agreement, it may request the concessionaire to revise the details of the application, and the concessionaire shall apply for the approval of the implementation plan within 60 days from the date of receipt of the request for correction with his/her responsibility and expenses: Provided,

(4) If a project implementer violates the provisions of paragraphs (1) through (3) due to a cause attributable to the project implementer, the designation of the project implementer may be revoked, and the project implementer shall not be liable for any funds raised or any expenses invested by it.

Article 53 (Principles of Risk Distribution)

(1) Any risks arising or likely to arise in connection with the business of this project shall be borne by a responsible party to such risks.

(2) In the case of any danger caused by force majeure, the primary and primary insurance shall be treated as related insurance, and each share of insurance shall be determined in accordance with this Convention with respect to any portion not treated by insurance.

(3) In determining the risk sharing ratio according to the nature of each cause pursuant to paragraph (2), it shall be based on whether the occurrence of the cause is adjacent to the conduct, authority, and scope of control of any of the parties to the agreement.

Article 54 (Grounds for Disqualification and Management of Project Implementer)

(1) In the interpretation of this Convention, the following causes are not limited to those attributable to the project operator:

1. Where the concessionaire has seriously violated matters provided for in this Convention, Acts and subordinate statutes, etc. or has violated the disposition or order of the competent authority under Article 46 of the Private Investment Act;

7. Where an application for approval of an implementation plan is not filed within the period specified in Article 18 (1), Article 59 (Termination of an Convention upon Termination).

(1) If any cause attributable to the concessionaire prescribed in Article 54 occurs, the competent authority may terminate this Agreement and cancel the designation of the concessionaire or may take other necessary measures, such as cancellation of management and operation rights, by giving written notification to the concessionaire under this Article.

(5) Where any cause for termination of an agreement under this Article occurs, the party concerned with the right to terminate the agreement (hereinafter referred to as the "right to terminate the agreement") shall request the other party to recover the cause for termination or consult for the recovery of the cause in writing within a fixed period not exceeding 90 days from the occurrence of the cause for termination (hereinafter referred to as "the recovery period"). Where the cause is not cured within the recovery period or the agreement for recovery is not reached, the right to terminate the agreement may notify the other party of the termination in writing, and the termination shall become effective by arrival of notice of termination.

1. This Convention may be amended or supplemented only by a written agreement signed (or signed and sealed) by the parties to the Convention.

(2) Notwithstanding paragraph (1), with respect to items that shall be determined after the conclusion of this Convention, the amendment of this Convention shall be deemed to have been made in accordance with the agreed figures, even if the parties to the Convention have not concluded a separate amendment agreement, with respect to such items.

(4) Parties to the Convention shall, in determining whether to amend or modify the Convention, take into account the intent of the Public-Private Partnerships Act, whether business profitability is secured through the projects under this Convention, and whether the principle of risk allocation between the parties to the Convention as provided for in this Convention, after the conclusion of this Convention, of all other circumstances after the conclusion of this Convention,

5. If it is objectively deemed that maintaining this Convention as it is, during the project period, is objectively unfair due to the enactment, amendment, government policies related to projects, price and interest fluctuation, etc. of Acts and subordinate statutes, etc., or if necessary for the smooth operation of the project or the enhancement of profitability, etc., this Convention may be adjusted or amended through consultation.

3) On April 23, 2014, in order to carry out the instant business, companies constituting a consortium (tentative name) A Co., Ltd. established the Plaintiff on April 23, 2014 in accordance with Article 14 of the Private Investment Act, and the Plaintiff succeeded to the legal status of “(tentative name)A Co., Ltd.” (tentative name) and “Plaintiff, regardless of whether before and after the Plaintiff’s establishment.”

(b) Litigation in relation to the hotel site;

1) As part of the instant project, the Plaintiff filed an application for the cancellation of prohibited acts and facilities in the school environmental sanitation and cleanup zone pursuant to the proviso of Article 6(1) of the School Health Act in order to construct 15 stories above ground, total floor area 24,618.17m, and 325 guest rooms on the 2,162,789 square meters of land among the Da of Busan Metropolitan City Maritime Transportation Daegu as part of the instant project to the head of the Busan Metropolitan City Office of Education (hereinafter referred to as the “head of the Office of Education”). However, the said head of the Office of Education rejected the said application after deliberation by the School Environmental Sanitation and Cleanup Committee on June 10, 2014. The Plaintiff filed a lawsuit against the head of the Office of Education for Maritime Transportation (this Court Decision 2014Guhap22657), but the Plaintiff’s claim was dismissed on April 23, 2015. The Plaintiff appealed and appealed both, but the said judgment became final and conclusive.

2) On January 2016, the Plaintiff applied for the cancellation of the prohibited acts and facilities in the school environmental sanitation and cleanup zone of the Plaintiff to the head of the Marine Transport Education Center, but the said application was rejected. The process of negotiations for the modification of the instant concession agreement.

1) As a result of the foregoing disapproval disposition at the office of marine transportation training, there were difficulties in implementing the instant project. On October 6, 2015, the Plaintiff submitted a draft concession agreement containing modification design documents, etc. to transfer the existing hotel site to the Defendant outside the school environmental sanitation and cleanup zone. From December 15, 2015, the Plaintiff and the Defendant held a negotiation working meeting on negotiations on a concession agreement and consulted on whether there were problems or safety measures, etc. of the alternative presented by the Plaintiff. On December 22, 2015, the Plaintiff and the Defendant agreed to form a negotiation group at the aforementioned negotiation working meeting.

2) The Plaintiff and the Defendant constituted a negotiation group for the amendment of the instant concession agreement, and the result table of the first conference held on January 19, 2016 is as follows:

A person shall be appointed.

3) On March 2, 2016, the Plaintiff submitted to the Defendant design documents, etc. under alternative 2 as set forth at the above negotiation conference (hereinafter referred to as “revision design report”).

4) The Busan Development Institute conducted an analysis and legal review of the eligibility of the private sector of the instant project. As a result, the facilities remaining except for the specialized sports facilities among the instant project facilities are incorporated into the instant ancillary facilities as provided by Article 21 of the Public-Private Partnerships Act, and the said ancillary facilities are also incorporated into the instant ancillary facilities, while the project cost for the ancillary projects exceeds the project cost, and thus, there is a problem of violation of Article 21(13) of the Public-Private Partnerships Act in the event of separation of the ancillary projects. Accordingly

5) After March 11, 2016, the Plaintiff and the Defendant consulted on the structure and nature of the business related to hotels, conventions, etc. at a negotiation conference held on March 11, 2016.

A person shall be appointed.

6) The Plaintiff and the Defendant continued to negotiate for the amendment of the instant concession agreement, but the negotiations on March 18, 2016 were concluded.

D. Application for approval of the Plaintiff’s implementation plan

1) On March 18, 2016, the Plaintiff: (a) classified the hotel and convention facilities into ancillary facilities to the Defendant; and (b) filed an application for approval of the implementation plan to transfer the location of the hotel to the Defendant outside school environmental sanitation and cleanup zone.

2) On April 27, 2016, the Defendant sent an official document containing the following contents to the Plaintiff. ① The Defendant did not accept the application for approval of the implementation plan submitted by the Plaintiff on March 18, 2016, as the content of the application for approval was not prepared in accordance with the instant concession agreement concluded on March 19, 2014, and did not obtain the deliberation of the School Environmental Sanitation and Cleanup Committee related to hotel building and did not meet the requirements, such as failing to submit a loan agreement related to the plan for raising funds required by the time the application for approval of the implementation plan was filed.

(2) Pursuant to Article 13(5) of the Public-Private Partnerships Act, the designation of the concessionaire of the Plaintiff has become null and void. Accordingly, the grounds for termination of the concession agreement under Article 59(1) and (5) of the concession agreement have occurred. (3) In full view of the purport and purpose of the Public-Private Partnerships Act and the concession agreement, the Plaintiff raised an objection on March 21, 2016, etc., the “revision of the application for approval of the implementation plan” under Article 18(3) of the concession agreement or “treatment of the grounds for termination of the concession agreement” under Article 59(5) of

Within 60 days from the date of receipt of a request for revision pursuant to Article 18(3) of the concession agreement: Within 60 days from the date of receipt of a request for revision pursuant to Article 18(3) of the concession agreement, the Plaintiff’s request for revision or recovery to the Defendant on May 19, 2016 is not reasonable. As such, the Defendant withdrawn an unfair request and actively requested for a project to be operated in accordance with the application for the approval of the implementation plan submitted by the Plaintiff while carrying out negotiations for the amendment of the concession agreement.

E. Revocation of designation of the Defendant’s project implementer

1) On July 6, 2016, the Defendant entered the Plaintiff as “the fact that the Plaintiff failed to comply with the requirements for correction under Article 18(3) of the instant concession agreement, etc., and notified the Plaintiff of the revocation of the designation of the concessionaire.” On July 26, 2016, the Defendant held a hearing against the Plaintiff.

2) On August 10, 2016, the Defendant notified the Plaintiff on August 10, 2016 that the Plaintiff would cancel the designation of the concessionaire and terminate the concession agreement on the ground that the Defendant failed to perform the Defendant’s request for remedy of the grounds for termination of the agreement under Article 59(5) of the instant concession agreement, and the Defendant’s request for correction of the Defendant’s implementation plan under Article 18(3) of the instant concession agreement was breached (hereinafter “instant disposition

[Ground of recognition] Facts without dispute, Gap's statements, Gap's evidence Nos. 1, 6, 7, 9, 11, 17, 19, and 22, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Absence of legal basis

Since the instant disposition is an indivative and punitive administrative disposition that restricts the Plaintiff’s rights, there is a need for legal basis in accordance with the principle of statutory reservation. However, since the Defendant rendered the instant disposition pursuant to Article 18(3) and (4) of the concession agreement, it is unlawful that the instant disposition was issued without legal basis.

2) Non-existence of grounds for disposition

An application for approval of an implementation plan submitted by the Plaintiff on March 18, 2016 is prepared by reflecting the agreement between the Plaintiff and the Defendant. That is, the Plaintiff and the Defendant agreed on January 19, 2016 as an alternative two alternatives to move most of the facilities including hotels to outside the school environmental sanitation and cleanup zone. On March 2, 2016, the Plaintiff submitted a revised plan report to the Defendant pursuant to the above alternative2, and prepared an application for approval of the implementation plan based on the above revised plan report. Therefore, under the premise that there was no agreement on the change of the location of a hotel between the Plaintiff and the Defendant on the premise that the Plaintiff and the Defendant did not reach an agreement on the change of the location of the hotel, it is unlawful to require the Plaintiff to obtain deliberation by the school environmental sanitation and cleanup committee, and the instant disposition was made pursuant to Article 18(3) of the instant implementation cooperation. Moreover, the Defendant did not accept the implementation plan by asserting that the construction and operation of the hotel and convention facilities should be modified as a supplementary business, and it is difficult to deem that the Plaintiff did not refuse to submit the above loan agreement.

(iii) deviation from and abuse of discretionary power;

The revocation of the designation of a concessionaire constitutes discretionary action. However, in the event that the Plaintiff’s right to operate the business is deprived of, or the concession agreement of this case is terminated by pressure of the Plaintiff, the Defendant made the instant disposition for unjust purposes, i.e., the Defendant’s failure to assume the Defendant’s responsibility for the expenses that the Plaintiff incurred, and thus, there

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Judgment on the non-existence of legal basis

A) The act of designating the project implementer and the legal nature of the instant disposition

The act of designating a concessionaire constitutes a beneficial administrative disposition with the nature of a patent granted by Gangwon-do by establishing the exclusive and exclusive right to implement the relevant infrastructure facilities projects, such as the construction, management, and operation of the relevant infrastructure facilities, under the Private Investment Act and concession agreement. The revocation of an administrative act is a separate administrative disposition extinguishing its validity retroactively on the ground of an unlawful or unreasonable defect in the relevant act, which once constituted a valid administrative act. The revocation of an administrative act is an administrative disposition that ex post facto extinguishs all or part of the validity of an administrative act, which is fully effective upon meeting lawful requirements, to the future. Thus, the revocation of an administrative act refers to a defect at the time of establishment of the administrative act, and the grounds for revocation refers to a new occurrence after the administrative act was constituted, and thus, the validity of an administrative act cannot be sustained (see Supreme Court Decision 2003Da6422, May 30, 2003).

The Defendant made the instant disposition on the ground of Articles 18(4) and 59(1) of the instant concession agreement. Article 18(4) of the said concession agreement provides, “If a concessionaire violates the provisions of paragraphs (1) through (3) due to a cause attributable to the concessionaire, the designation of the concessionaire may be revoked, and shall not be held liable for the funds or expenses invested by the concessionaire,” and Article 59(1) provides, “If a cause attributable to the concessionaire as prescribed in Article 54 arises, the competent authority may terminate the instant agreement by notifying the concessionaire in writing pursuant to this Article and take other necessary measures, such as cancelling the designation of the concessionaire or cancelling the management and operation rights of the concessionaire.” Ultimately, the said provision provides that “If a cause attributable to the concessionaire as prescribed in Article 54 arises, the said disposition constitutes revocation of the designation of the concessionaire.”

B) The so-called withdrawal of the so-called "beneficial administrative act" is an administrative act that ex post loses its validity even though there was no particular defect at the time of the disposition. Thus, if there is no express provision in the law or the right to withdrawal is reserved by the subsidiary of the administrative act, it shall be allowed only in exceptional cases, such as changes in circumstances where there is no need to continue the original administrative act, or where there is a need for important public interest (see Supreme Court Decision 2004Du1954, Apr. 29, 2005). In addition, even if there is no special provision in the laws and regulations in the beneficial administrative disposition, it may be imposed as an assistant officer, and such a burden may be imposed unilaterally by an administrative agency while imposing a burden, but it may be imposed by prior consultation with the other party and adding it (see Supreme Court Decision 2005Da6500, Feb. 12, 2009).

In light of the above legal principles, a disposition to designate a concessionaire, which is a beneficial administrative disposition, may withhold the right to withdrawal as its subsidiary officer, and the specific details of the reservation to withdrawal may be determined in advance by the parties in the form of an agreement. Article 13(3) of the Private Investment Act provides that the competent authority shall designate a concessionaire by entering into a concession agreement with a potential concessionaire, and the conclusion of the concession agreement and the designation of the concessionaire are simultaneously conducted. As such, by entering into the instant concession agreement including the reservation of the right to withdrawal on the designation of the concessionaire as in the instant case, the Defendant may add the additional clauses of the reservation to the disposition to the designation of the concessionaire. Accordingly, even if the Defendant does

Since the designation of a project operator can be revoked, the Plaintiff’s assertion that the disposition of this case was made without any legal basis that goes against the principle of statutory reservation is without merit.

2) Determination as to the non-existence of grounds for disposition

A) On the premise that the agreement between the parties to the agreement on the application for approval of the implementation plan was reflected, the plaintiff asserted that the defendant prepared an application for approval of the implementation plan on the premise that there was an agreement on the change of the location of hotel and other related facilities (hereinafter referred to as "change of the location of hotel, etc."). On the contrary, the defendant asserted that there was no agreement, and that there was no agreement on the request for revision of the above school environmental sanitation cleanup committee as necessary for the establishment of hotel in the school environmental sanitation and cleanup zone pursuant to the existing concession agreement. Therefore, it is problematic whether the plaintiff and the defendant agreed on the "change of the location

In light of the following circumstances, it is reasonable to deem that there was an agreement between the Plaintiff and the Defendant on the alternative 2, a content of moving most of the locations of facilities including hotels to outside the school environmental sanitation and cleanup zone, and the Plaintiff prepared an application for approval of the implementation plan by reflecting the above agreement results. As the Plaintiff did not reflect the agreement with the Defendant in the opposite premise, it is difficult to revoke the designation of the project implementer on the grounds that the Plaintiff demanded the application for approval of the implementation plan, and the content was not modified, on the contrary premise, on the ground that the Plaintiff did not reflect the agreement with the Defendant.

(1) Among the instant business facilities, hotel facilities were located in school environmental sanitation and cleanup zone, and were in need of cancellation of facilities in order to build the said facilities. However, the head of a maritime education office rejected the Plaintiff’s application for cancellation, and the Plaintiff filed an administrative appeal and administrative litigation seeking revocation of the said rejection disposition, but the judgment against the Plaintiff was sentenced on April 23, 2015, and the dismissal of the appeal was sentenced on December 4, 2015. The Plaintiff filed an application for cancellation again with the head of the maritime education center on January 15, 2016, but the head of the maritime education office rejected the designation of the hotel site on March 18, 2016. The Plaintiff did not file an application for approval of the implementation plan by March 18, 2016 pursuant to Article 13(5) of the Private Investment Act, the designation of the project implementer was invalidated. In light of the progress of the said lawsuit or the deadline for filing an application for approval of the Plaintiff’s implementation plan, the existing hotel site was virtually impossible.

(2) To complete the procedure necessary for the change of location, such as hotel deliberation by the Busan Metropolitan City Construction Committee, the Plaintiff and the Defendant first agreed on the change of location, such as hotel, within the time limit for application of the implementation plan. On January 19, 2016, the Plaintiff and the Defendant agreed on two alternatives for the change of location, such as hotel. In other words, pursuant to Article 14(1) and (2) of the Busan Metropolitan City Ordinance on Public-Private Partnership Projects, the negotiation group whose head is the head of the negotiation group has the authority to consult with the potential concessionaire about the total business cost, period of use, and conditions for the implementation of the project. Considering that the above negotiation group’s characteristics differ from the negotiation practice meeting previously conducted, the agreement between the Plaintiff and the Plaintiff on January 19, 2016 on the change of location, including the above agreement on the change of location at the first negotiation meeting of the Busan Metropolitan City, the Defendant merely expressed its signature on the lower end of the negotiation meeting and the Plaintiff’s opinion on the change of location to 10th alternative hotel.

(3) On March 2, 2016, the Plaintiff prepared and submitted a revised design report to the Defendant in accordance with the alternative 2, and applied for deliberation by the Building Committee on the revised construction plan including the change of the location of hotel, etc. to the Minister of Maritime Affairs and Fisheries. On March 3, 2016, the Defendant submitted an application to the Busan Metropolitan City Maritime Affairs and Trade Office for a revision of the construction plan including the change of the hotel location. The Defendant reflected the opinion presented at the time of the deliberation of the Building Committee and the comprehensive deliberation on the traffic impact assessment to the Busan Metropolitan City Maritime Affairs and Trade Office on April 3, 2016, and changed the construction plan to a location where a hotel can be constructed without falling under the school environmental sanitation and cleanup zone around the project site and not falling under the school environmental sanitation and cleanup zone of the IG and IG. In order to file a civil petition in our City, the Plaintiff explained that the project would inevitably be implemented as the revised construction plan (the plan) at the time of dismissal to the maximum extent possible before the approval of the residents.

On March 17, 2016, the Busan Metropolitan City Construction Committee of the Shipping Daegu deliberated on a conditional deliberation, including the condition that the size of the building (number of floors and size) shall be at least three stories lower than the size of the building, taking into account the fact that the hotel is a profit facility, not a main purpose facility for the instant business. In other words, the defendant sent an opinion on the above consultation under the premise that the location of the hotel was moved outside the school environmental sanitation and cleanup zone as attached to the revised design, report, etc.

(4) The Plaintiff and the Defendant conducted the instant project on the premise that the hotel and convention facilities are ancillary facilities included in the instant project at the time of conclusion of the instant concession agreement. However, on March 2016, the Busan Development Institute examined the eligibility of the public in relation to the instant project modification, and it is illegal for the Busan Development Institute to regard the construction and operation of hotel and convention facilities as ancillary facilities and include them in the instant project. As such, it is unlawful to separate the instant project and ancillary facilities and include them in the instant project, it presented a review that “the concession agreement should be amended in accordance with the relevant Acts and subordinate statutes.” From March 4, 2016 to March 4, 2016, the Plaintiff and the Defendant discussed in full as to whether the construction and operation of hotel and convention facilities are ancillary business or ancillary business. In the event that the construction and operation of hotel and convention facilities are deemed ancillary business as prescribed in Article 21 of the Act on Private Participation in the Construction and Operation of the said facilities, there is a significant difference between the scope of the project cost, the size of the land, the period of land for free use, the

(5) Until March 18, 2016, the Plaintiff and the Defendant consulted on the amendment of the concession agreement, including the nature of the hotel and convention facility construction and operation of the hotel and convention facility. On March 18, 2016, the respective amendment concession agreements by the Plaintiff and the Defendant on March 18, 2016 are only different from the content of Article 3 (Handling of Differences between the Parties to the instant concession agreement) and the remainder except that. In particular, the content of Article 2 (Modification of Revised Books, Financial Models, etc.), which was attached to the existing concession agreement, shall be changed collectively into the accompanying documents, such as design documents, financial model, etc. attached to the revised design report, and the project operator shall submit an application for approval of the implementation plan. Ultimately, although the Plaintiff and the Defendant changed the design documents, etc. attached to the revised design report submitted by the Plaintiff as a supplement to the instant concession agreement, it would not have any dispute over the nature of the hotel and agreement construction of the facility and the termination of the agreement.

(6) The Defendant asserts that the relocation of a hotel is accompanied by a change in construction cost or demand, design drawings, and accompanying documents related thereto, and that the negotiation group meeting on January 19, 2016 only referred to as “to be 2,” but did not fully agree on matters accompanying the relocation of the hotel, and thus, the meeting of the negotiation group cannot be deemed as final agreement. However, even according to the amended concession agreement proposed by the Defendant on March 18, 2016, the report on revised design submitted by the Plaintiff is deemed to include the change in construction cost or demand, design drawings, and accompanying documents related to the relocation of the hotel, such as the hotel, and the documents attached to the revised design report, financial model, etc. submitted by the Plaintiff on March 18, 2016, it is difficult to accept the Defendant’s aforementioned assertion in view of the fact that the documents attached to the instant concession agreement, such as the design documents, financial model, etc., are collectively changed to the accompanying documents submitted by the Plaintiff on the revised design report submitted by the Plaintiff.

(7) In addition, the Defendant asserts that the modification of the concession agreement for the change of the hotel location was not made on the premise that the modification of the concession agreement is necessary for the change of the hotel location. However, the hotel location itself is merely reflected in the drawings and specifications, etc., rather than the content of the concession agreement, as the premise for the conclusion of the concession agreement, and it is difficult to say that the modification of the concession agreement is necessary for the change of the hotel location, separate from the modification of the content of the concession agreement for the change of the hotel location. In addition, Article 18(2) and (3) of the concession agreement of this case only provides that the applicant can request the modification of the contents of the application if it is confirmed whether the agreement was reflected in the application for the approval of the execution plan and it is determined that the agreement was not reflected, and it does not necessarily mean that the application for the approval of the execution plan can be made by reflecting the agreement of the parties to the agreement.

B) Whether the failure to submit a loan agreement constitutes a violation of the provisions of the concession agreement or the laws and regulations

Unless otherwise stipulated in this Convention, Article 8(3) of the instant concession agreement provides that the concessionaire shall submit to the competent authority a letter of intent for loans or a conditional loan agreement of creditor financial institutions, etc. presented at the time of the submission of the relevant project plan by the time of the application for approval of the implementation plan until the time of the application for approval of the implementation plan on March 18, 2016. The Plaintiff’s failure to submit the loan agreement to the Defendant by the time of the application for approval of the implementation plan on March 18, 2016 does not conflict between the parties. However, in light of the following circumstances, the Plaintiff’s failure to submit the loan agreement is difficult to be deemed as a serious violation of the concession agreement, and thus, the designation of the concessionaire cannot be revoked on this basis.

(1) The operating income of hotel and convention facilities accounts for 56.9% of the total operating income of the instant business. It is inevitable to affect the Plaintiff’s business profit, loan, repayment schedule, etc. depending on whether such income is deemed an ancillary business or an ancillary business. Therefore, it is impossible for the Plaintiff to enter into a loan agreement with a gold-Eup institution in a state where the structure or nature of the said business is not clearly determined. However, it is not difficult for the Plaintiff to enter into a loan agreement with the said institution until March 18, 2016.

(2) Even after the application for approval of a project implementer’s implementation plan, the competent authority may demand revision or supplementation of the contents of the application, and the pertinent project contents or terms and conditions of the loan are not determined until the competent authority approves the implementation plan. Therefore, it is practically difficult for the project implementer to enter into a conclusive loan agreement with a financial institution before the competent authority approves the implementation plan. As the structure of the above hotel and convention construction and operation project changes, it is difficult for the Plaintiff to submit a financial agreement until the time the application for approval of the implementation plan is filed, and the Defendant also changed to confirm the methods of handling other cases where the agreement was accepted later.

(3) Article 90(2) of the Enforcement Decree of the Public-Private Partnerships Act provides that when a project implementer intends to obtain approval of an implementation plan, he/she shall submit an application for approval of an implementation plan under Article 16 of the Enforcement Decree of the Public-Private Partnerships Act to the competent authority, and the “other matters deemed necessary by the competent authority” under Article 16(1)6 of the Enforcement Decree of the Public-Private Partnerships Act includes the documents on measures to secure financial resources and the agreement on financing, and the detailed provisions thereof are Article 8(3) of the instant concession agreement. The purport of the above provision is to verify the project implementer’s ability to raise funds in order to prevent a private investment project from being broken out due to the shortage of funds. On March 18, 2016, the Plaintiff submitted a conditional loan guarantee to the Defendant at the time of the application for approval of the implementation plan, and the above loan guarantee statement states that “I,” among the total investment funds required for the instant project, guarantee that I will make a loan under the premise of the Plaintiff’s implementation plan and final approval under the internal regulations.

3) Sub-decisions

Thus, the disposition of this case is unlawful without examining the remainder of the plaintiff's remaining arguments, unless the above grounds for disposition exist.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.