The court shall examine the legitimacy of a non-management authority's rejection disposition against a non-management authority's application

In examining the legitimacy of the disposition of refusal to implement a harbor project through the fact-finding on the requirements for permission under Article 9(3) of the former Harbor Act and the interpretation and application of the relevant statutes, the court shall determine whether the non-management authority, who intends to obtain permission to implement a harbor project, satisfies the requirements for permission through the fact-finding on the requirements for permission under Article 9(3) of the former Harbor Act and the interpretation and application of the relevant statutes, and determine the legitimacy of the disposition of refusal in light of the relevant conclusion.

Article 9(2) and (3) of the former Harbor Act (Amended by Act No. 11594, Dec. 18, 2012);

Han Young Industrial Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Jeong Young-young et al., Counsel for the defendant-appellant)

Supo Regional Port Commissioner (Law Firm Jeong-dong et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2011Nu2087 decided January 24, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The main sentence of Article 9(2) of the former Harbor Act (amended by Act No. 8628 of Aug. 3, 2007; hereinafter “former Harbor Act”) provides that “When a non-management authority intends to implement a harbor project, it shall prepare a plan for the harbor project and obtain permission from the management authority, as prescribed by Presidential Decree.” However, there was no provision on the criteria for permission prior to the amendment of the Harbor Act and its Enforcement Decree.

With the amendment of the Harbor Act prior to the amendment by Act No. 8628 on August 3, 2007, the main provision of Article 9(2) of the same Act remains intact, and the management authority prescribed the following requirements under Article 9(2) of the same Act that “if a non-management authority that intends to obtain permission to implement a harbor project under paragraph (2) does not violate a basic harbor plan, etc. (Article 1), that is, there is a need for a harbor project for the management and operation of a harbor (Article 2), and that a non-management authority has the capacity to implement a harbor project (Article 9(3) of the same Act).” The requirements under each subparagraph of Article 9(3) of the same Act were newly established under Article 9(3) of the same Act that “if a non-management authority meets all the requirements (Article 208-124 of the Public Notice of the Ministry of Land, Transport and Maritime Affairs on May 7, 2008).

The Harbor Act was amended by Act No. 9763 on June 9, 2009. The main text of Article 9(2) provides that "where a non-management authority intends to implement a harbor project, it shall prepare a harbor project plan and obtain permission from the Minister of Land, Transport and Maritime Affairs, as prescribed by Presidential Decree," and Article 9(3) provides that "the Minister of Land, Transport and Maritime Affairs shall grant permission where a non-management authority intends to obtain permission to implement a harbor project pursuant to paragraph (2) satisfies all of the following requirements." As a requirement, "harbor project plan shall be implemented in accordance with the following basic plans, namely, basic harbor plans (a)), Article 51(1) [b) of the Harbor Act], Article 3(1) of the New Harbor Construction Promotion Act (c) [Article 3(1)], "the need for the management and operation of a harbor project in accordance with the standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs (Article 2)."

After that, Article 9(3) of the Harbor Act was amended by Act No. 11594 on December 18, 2012 (from the date six months have elapsed since its promulgation under Article 1 of the Addenda), the requirements of “in the case of a cargo manufacturing facility, it shall meet the location criteria prescribed by Presidential Decree, such as the degree of pollution emission,” were added.

2. If the amendment details, form, and structure of Article 9(2) and (3) of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter the same shall apply), which served as the basis for the instant disposition, is identical to the foregoing, the court shall determine whether the non-management authority, who intends to obtain permission to implement a harbor project, satisfies the requirements for permission under Article 9(3) of the former Harbor Act, and determine the legitimacy of the disposition of refusal in light of its conclusion.

However, without examining and determining whether the Plaintiff seeking to obtain permission for the instant harbor project satisfies the requirements for permission under Article 9(3) of the former Harbor Act, the lower court concluded that the instant disposition cannot be deemed an illegal disposition that misleads the Plaintiff of the fact or deviates from or abused discretion by violating the principle of proportionality and equality. In so doing, the lower court erred by misapprehending the legal doctrine on permission for the implementation of harbor project under the former Harbor Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

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 Kim So-young (Presiding Justice)