(영문) 서울고등법원 2016.11.09 2016누39032

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(영문) 서울고등법원 2016.11.09 2016누39032

항만시설사용료부과처분무효확인

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1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim corresponding to the above revocation part.

Reasons

1. The grounds for this part of the disposition by the court are as stated in Paragraph (1) (No. 2, No. 9-3, No. 16) of the judgment of the court of first instance.

2. In the first instance court, the Plaintiff sought confirmation of invalidity of the imposition of KRW 1,98,659,200 against the Plaintiff on February 28, 2013 and the imposition of KRW 3,860,895,310 on May 2, 2013, and the imposition of KRW 3,860,895,310 on the fees for the use of harbor facilities as of May 2, 2013. Accordingly, the first instance court dismissed the Plaintiff’s ex officio revocation of the imposition of KRW 286,32,294 from the imposition of KRW 2,574,563,016 from the instant lawsuit on May 2, 2013, on the ground that the Defendant’s claim for confirmation of invalidity of the imposition of the fees for the use of harbor facilities as of May 2, 2013, and thus, dismissed the Plaintiff’s claim against the remainder of KRW 3,574,863,016 (=3,895,31063,294).

Since only the Defendant appealed against this part of the judgment against the Defendant, the subject of the judgment of this court is limited to the imposition of KRW 1,98,659,200 of the port facility usage fee of February 28, 2013 and the claim for confirmation of invalidity of KRW 3,574,563,016 of the imposition of the usage fee of the port facility of May 2, 2013.

3. The Plaintiff’s instant disposition has the following defects, and its defect is serious and clear. Thus, the instant disposition is null and void as a matter of course.

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.

B. 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 user fees for harbor facilities, and only the calculation of user fees for harbor facilities is delegated to the public notice of this case.

However, this case’s disposition is based on this case’s disposition.

참조조문

-항만법

-행정절차법 제21조 제1항

유사 판례

-서울고등법원 2016.11.9.선고 2016누39032 판결

-수원지방법원 2016.2.2. 선고 2015구합63693 판결

-수원지방법원 2013.12.26.선고 2013구합4379 판결

-수원지방법원 2016.02.02 2015구합63693

-부산고등법원 2017. 12. 06. 선고 2017누22152 판결