(영문) 인천지방법원 2018.2.12.선고 2016구합52211 판결

1. The plaintiff confirms that with respect to the harbor facilities listed in the annexed Form 1, the user fee exceeds 187,735,81,266 won and up to 207,240,670,521 won.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

(a) Permission for implementation of a harbor project and approval of an implementation plan;

(1) On May 2009, the Plaintiff obtained permission from the head of the Incheon Regional Maritime Affairs and Fisheries Office, the Ministry of Land, Transport and Maritime Affairs (the Minister of Oceans and Fisheries, the head of the Incheon Maritime Affairs and Fisheries, and the head of the Incheon Maritime Affairs and Fisheries, hereinafter referred to as the “head of the Incheon Maritime Affairs and Fisheries”). On June 26, 2009, the Plaintiff obtained approval from the head of the office of the office of the Incheon Maritime Affairs and Fisheries in relation to the construction of the port facilities, and implemented a non-management authority's harbor project implementation plan regarding the

(2) The implementation plan was subject to the conditions of approval. However, Paragraph (5) of the general matter requires a specialized construction-supervising firm under Paragraph (1) of the Construction Technology Management Decree to perform the full responsible supervision for the main construction work; Paragraph (6) of the same Article requires a project operator to submit a plan for supervision (including a plan for the performance of supervision, a copy of a technical qualification certificate for the number of inputs, and a written confirmation of career) from the relevant specialized construction-supervising firm under Paragraph (5) and consult with the management agency, subject to consultation.

The supervisory company shall take measures to start and perform the supervisory duties (the same shall also apply to the case where the consulting supervisory company intends to revise a plan to perform the supervisory duties) and shall also submit a copy of the supervision agreement and a copy of the commencement report of the supervisory duties to the managing agency when submitting a report of commencement of the supervisory duties under paragraph (2). In the event of failure to comply with this, the relevant expenses for the relevant supervision may not be recognized in the process of calculating the total project cost after the completion

(3) On June 30, 2009, the Plaintiff began construction of port facilities, and on July 8, 2009, the head of the office of the Incheon Port Construction submitted a public letter stating that "to submit a plan for approval of a non-management agency's implementation plan for port facilities" to the head of the office of the office of the Incheon Port Construction, and on the above general matters paragraph (5), the Plaintiff responded that "to take measures (self-supervision) in accordance with the relevant Acts and subordinate statutes" and "to take measures in accordance with the approval conditions at the time of entering into a supervision contract."

(4) On November 25, 2011, the Plaintiff submitted to the head of the Incheon Port Construction Office an official document stating that “the head of the Incheon Port Construction Office submitted the status of implementation of the implementation plan and the conditions of implementation of the implementation plan.” The Plaintiff stated that it was carried out as a result of the implementation under Articles 5 and 6 of the above general matters, and submitted the commencement report, electronic contract, and the Plaintiff’s letter of appointment of the direct supervisor.”

(b) Process of harbor works and modification of an implementation plan;

(1) The Gando Port Facility Corporation was conducted when it was divided into Kimpo-si, Incheon District, and Western Ocean Port Facility Corporation. The Sando Port Facility Corporation (hereinafter referred to as the “instant construction”) produces and installs 2 facilities and 1 facilities incidental thereto (hereinafter referred to as “instant facilities”). The initial scheduled completion date was June 29, 2012, and the Si Corporation completed the manufacture and installation of the instant facilities on July 16, 2012, and confirmed the completion thereof by the Plaintiff.

(2) On February 24, 2010, the Plaintiff acquired reclaimed land to be incorporated into the Ganman Port Corporation from Seoul Special Metropolitan City and the Ministry of Environment, and obtained approval from the Mayor of Incheon Metropolitan City on March 31, 201 from the Mayor of Incheon Metropolitan City, for the change of the purpose of reclamation by project zone, and for the implementation plan on March 14, 201, on the basis of the purpose of reclamation on March 14, 2011. The Plaintiff filed an application for the change of the purpose of reclamation and the division of an implementation plan to the head of Incheon Metropolitan City Mayor on August 31, 2011 on the ground that the management authority needs to change the purpose of reclamation and the division of an implementation plan, but the Plaintiff filed an application for the change of the implementation plan due to the extension of the construction period (six vehicles) with the head of the office of Incheon Port Construction on June 22, 2012 due to the delay in the procedure of permission.

(3) On July 2, 2012, the head of the Incheon Port Construction Office added the condition that “the construction interest for the extension of the project period is excluded when calculating the total project cost for the portion reverted to the State” under the condition of approval of the implementation plan. The remaining conditions were the same as the previous conditions.

(4) On July 31, 2012, the Plaintiff obtained approval from the Mayor of Incheon Metropolitan City to change the purpose of reclamation and the implementation plan, and applied for approval on three occasions from November 14, 2012 to March 8, 2013 in order to obtain approval of the final implementation plan by reflecting the results of the final survey on the area. However, the Mayor of Incheon Metropolitan City rejected all the above applications on the grounds that the conditions of approval on July 31, 2012, consultation with related institutions (departments), opinions of residents’ inconvenience, and individual promotion items should be dealt with preferentially.

(5) Accordingly, the Plaintiff filed an application for the change of the implementation plan (business period) for the head of the Incheon Port Construction Office on five occasions from the 7th to the 11th 11th, and the project period was extended by March 31, 2014 as the head of the Incheon Port Construction Office approves each modification.

(6) Meanwhile, the Plaintiff, after completing the report on the use of the instant facilities prior to completion on October 28, 2011, has occupied, managed and operated the instant facilities.

(1) After that, the Plaintiff completed reclamation with the approval of the modification of the implementation plan for the instant site from the Mayor of Incheon Metropolitan City, and the Mayor of Incheon Metropolitan City confirmed and publicly notified the completion inspection for reclamation of public waters on the said site on January 20, 2014. The Plaintiff filed an application for confirmation of completion on the submission of the completion report to the head of the Incheon Maritime Affairs Office on March 3, 2014, and the head of Incheon Maritime Affairs Office requested the non-management authority to supplement the implementation plan and the conditions for approval of the implementation plan (including modification) on April 1, 2014, and did not properly supplement the said report on the completion of construction on September 1, 2014.

(2) On March 31, 2014, the date of completion of the instant construction project stated in the said specification is March 31, 2014, and the total project cost is KRW 208,771,213,653 (excluding value-added tax; hereinafter the same shall apply). The details refer to the project cost stated in attached Table 2, as shown in attached Table 2.

(3) On May 28, 2015, the head of the Incheon Maritime Affairs Administration conducted a joint investigation into harbor facilities on June 9, 2015. The Plaintiff and the Plaintiff exchanged opinions on the total project cost based on the completion report from October 8, 2015 to December 23, 2015. On December 24, 2015, a certificate of confirmation of completion was issued until July 16, 2012; on February 12, 2016, the result of the calculation of the total project cost of the instant construction was 187,735,811,26 won (see Table 2 attached hereto). The total project cost notified by the head of the Incheon Maritime Affairs Administration to the Plaintiff was 10% of the average construction cost per annum of construction supervision on the ground that the Plaintiff had not obtained approval of the implementation plan for construction supervision on the ground that the project period was less than 20% of the total construction cost per annum 60 to 20% of the total construction cost per annum.

[Reasons for Recognition] Facts without dispute, Gap 1-21 (including branch numbers if there are serial numbers; hereinafter the same shall apply), Eul 1,5-6, and 10-21, the purport of the whole pleadings

2. Summary of parties’ assertion;

A. The plaintiff

(1) With respect to the total project cost of the instant construction project, the Port Act and subordinate statutes shall apply as of December 24, 2015, which is the date of confirmation of completion under Article 19 of the Enforcement Decree of the Harbor Act, namely, the date of issuance of a certificate of confirmation of completion.

(b) Incidental expenses;

A) Inspection and supervision service charges, supervision service charges for fire-fighting construction, and direct supervision personnel expenses shall be included in the total project cost regardless of whether the conditions of approval for the implementation plan meet the requirements for recognition of the total project cost under Article 19 of the Enforcement Decree of the Harbor Act.

B. Even if the implementation of the conditions of approval of the implementation plan is the requirement for the recognition of the total project cost, the plaintiff knew that he would perform his own supervision from July 8, 2009, and the head of the Incheon Maritime Affairs Office did not raise any objection. The plaintiff made a verbal consultation with the person in charge at any time, and performed the conditions of approval for the implementation plan concerning self-supervision and confirmatory supervision service through the official document submitted on November 25, 201, and submitted on November 25, 201, and the text of the conditions of approval may not be recognized." Thus, even if the part of the conditions of approval is not fulfilled, it is reasonable to include the relevant supervision expenses in the total project cost, taking into account all the circumstances, such as the fact that it is reasonable to include the relevant supervision expenses as long as the conditions of

(3) According to Article 19(1)6 of the Enforcement Decree of the Harbor Act, and Article 12 of the Enforcement Rule of the Harbor Act, the interest rate on the construction of the instant construction shall be calculated as of the date of confirmation of completion, i.e., the date of issuance of a certificate of confirmation of completion. However, where the Plaintiff intentionally delayed the construction, the Plaintiff’s failure to undergo confirmation of completion at the time specified in the implementation plan for the construction project due to the Plaintiff’s gross negligence, and where the construction is delayed due to the shortage of the project cost necessary for the construction, the interest rate on the extension shall be excluded from the total project cost. Accordingly, even if the construction was imposed with the condition of approval for the extension of the project period of the instant construction

In addition, the extension of the construction period of this case is not due to the plaintiff's gross negligence but due to delay in the amendment of the implementation plan of the Mayor of Incheon Metropolitan City. Thus, the construction interest up to March 3, 31, 2014, which is the expiration date of the project due to the amendment of the implementation plan of the

B) Article 19(1)6 of the Enforcement Decree of the Harbor Act provides that Article 19(1)6 of the Enforcement Decree of the same Act shall apply only to the interest rate on the interest rate of a construction interest, which is the average receipt rate of deposit bank deposits announced by the Bank of Korea during the project period (hereinafter referred to as “average receipt rate”). Thus, as alleged by the Defendant, the average receipt rate does not apply in a lump sum without distinguishing the grace period from the total receipt rate per unit of a grace period, but rather, to individually apply the interest rate applying the grace period from the monthly average receipt rate and the date of completion of the project cost to the maximum

(4) Prior to the partial amendment of the Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 25298, Apr. 8, 2014; Presidential Decree No. 10/100 of the total project cost, including an amount equivalent to 10/100 of the investigation cost, design cost, construction cost, compensation cost, and incidental cost, among the total project cost, for profit) pursuant to Article 2 of the Addenda of the Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 19(1)8), the amount equivalent to 10/100 of the incidental cost calculated as referred to in paragraph (2) of the same Article, shall also be reflected

B. Defendant

(1) With respect to the total project cost of the instant construction project, the provisions of the Port Act shall apply as of the time of approval of the implementation plan. The “date of confirmation of completion” under Article 19 of the Enforcement Decree of the Harbor Act shall be deemed the date of actual completion stated in the certificate of confirmation of completion.

(2) The Plaintiff was notified that the pertinent supervision costs may be excluded from the calculation of the total project cost in the event of failure to comply with the approval conditions of the implementation plan of the instant construction project, and failed to comply with the said approval conditions (it is difficult to deem that the Plaintiff fulfilled the approval conditions on November 25, 201, but the Plaintiff satisfied the approval conditions at the time of the report on use prior to the completion of construction). Accordingly, each of the supervision costs should be excluded from the calculation of the total project cost. Direct supervision personnel expenses within the instant construction project should be excluded.

1) The Construction Technology Management Decree at the time of permission for implementation of construction works for port facilities does not include direct supervision expenses, as the method of construction management is distinguished from direct supervision and supervision activities.

2) The direct supervision of the Corporation constitutes the Plaintiff’s ordinary business and its cost also constitutes the Plaintiff’s ordinary expenses, and thus, it does not need to be included in the total project cost.

(3) Article 19 of the Enforcement Decree of the Harbor Act provides that the date of completion of construction shall be the date of actual completion stated in the certificate of confirmation of completion, rather than the date of issuance of a certificate of confirmation of completion. The defendant notifies that the construction interest rate for the project period extended under the conditions of approval (sixth) shall be excluded from the total project cost. Upon completion of the instant construction, the project operator may use harbor facilities without compensation and recover the construction funds administered, so interest rate during construction should be calculated on the basis of the date of actual completion of the construction. From October 28, 2011, the plaintiff suffered a benefit equivalent to the usage fee by occupying and using the instant facilities after filing a report of use before completion of construction. From June 29, 2012, the project period after the date of the initial completion of construction was extended due to reasons not related to the construction project. Comprehensively taking account of all the circumstances, the construction operator’s annual average interest rate under Article 16(1) of the Enforcement Decree of the Harbor Act shall not be excluded from the total project cost calculated on June 29, 20, 2019.

(4) In accordance with Article 19(1)8 of the Enforcement Decree of the former Enforcement Decree of the amended Enforcement Decree, as shown in attached Table 2 attached hereto, on the premise that the Defendant shall apply the harbor statutes as of July 16, 2012, which is the date of actual completion.

The amount equivalent to 10/100 of the design cost and construction cost recognized by the defendant was notified of the total project cost including for profit.

3. Determination as to the cause of action

(a) Related Acts and subordinate statutes;

Attached Form 3 shall be as listed in attached Table 3.

B. Determination of the scope of the right to use free use

(1) The base point of time for the applicable legislation in the calculation of total project cost

(A) Relevant legal principles

Since the right to free use of harbor facilities belongs to the State as a result of the completion of a harbor facility and simultaneously occurs pursuant to the Harbor Act, the content of the right to use the harbor facilities should be determined based on the Act and subordinate statutes enforced at the time of the completion of the harbor facility, which is the time of the occurrence of the right (Supreme Court Decision 2001, Aug. 21, 2008; 2008745). According to Article 15 of the former Harbor Act (amended by Act No. 1452, Dec. 20, 2016; 2017; hereinafter referred to as the “harbor Act”) and established as a non-management authority’s harbor project shall revert to the State at the time of the completion of the construction (paragraph (1). However, according to Article 12 of the Harbor Act, the non-management authority shall file an application for confirmation of completion of the construction project, along with the construction completion report, and shall not be deemed to have been completed before the completion of the construction project, as prescribed by Ordinance of the Ministry of Oceans and Fisheries.

In light of the above legal principles and relevant Acts and subordinate statutes, the implementer of a harbor project, who is a non-management authority, can use the harbor facilities free of charge from the time of receipt of a confirmation of completion pursuant to Article 12(5) of the Harbor Act, so it is reasonable to deem that the right of free use is established and that the total project cost should be calculated on the basis of "the date of confirmation of completion" under Article 19 of the Enforcement Decree of the Harbor Act. In light of the above language and relevant provisions, it is reasonable to deem that the date of confirmation of completion is not the date of completion of the facility construction, but the date of actual receipt of a certificate of confirmation of completion, in calculating the total project cost, which serves as the basis for the right of free use of harbor facilities, should be based on the date of issuance of the certificate

B. Review

According to the facts stated in Paragraph 1, it can be recognized that the date when the Plaintiff received a certificate of confirmation of completion of the construction project of this case on December 24, 2015. Thus, the relevant law as of December 24, 2015 should be applied to this case (i.e., whether there was any cause attributable to the Plaintiff for the extension of the project period, barring any special circumstance, and (ii) whether there was any cause attributable to the Plaintiff, and (iii) other than the Enforcement Decree of the amended Act, which was enforced on December 24, 2015, was amended specially disadvantageous to the Plaintiff, and there are no other materials to prove that the statutes prior to the amendment should be applied to protect the Plaintiff’s trust).

(2) Relevant legal principles concerning the interpretation of the approval conditions of implementation plan

The total project cost, which serves as the basis for the calculation of the period of free use by a harbor project implementer, who is a non-management authority, is calculated in accordance with the law, as the amount, duration, and grounds for occurrence thereof are stipulated in the law (see Supreme Court Decision 9Du10148, Sept. 4, 2001). The right of free use by a non-management authority for harbor facilities is naturally recognized within the scope of the total project cost calculated in accordance with the harbor law (see Supreme Court Decision 2001Du2485, Aug. 24, 200).

Therefore, even if an administrative agency unilaterally imposed conditions related to the calculation of total project cost at the time of approval of a non-management authority’s implementation plan for harbor works, it is difficult to interpret that a sub-management authority grants an administrative authority the authority to reject the restriction on the calculation method of total project cost in violation of a harbor statute. Furthermore, even if a non-management authority accepted such conditions, it is difficult to readily conclude that a project implementer immediately renounced the right to use the corresponding amount of free use (see Supreme Court Decision 2001Du2485, Aug. 24, 2001). Incidental expenses related to internal

1) Article 19(1) of the Enforcement Decree of the Harbor Act provides that the total project cost under Article 15(4) of the Harbor Act shall be the actual cost incurred in relation to the relevant harbor project as of the date of confirmation of the completion of the relevant harbor project. Article 15(1)5(a) of the Enforcement Decree of the same Act provides that construction project management cost according to the standards for calculation of construction technology service cost under Article 37 of the Construction Technology Promotion Act shall be included in incidental cost. Article 19(2) of the same Enforcement Decree provides that the aforementioned cost shall be based on evidentiary documents, such as a contract and a tax invoice, and the cost for which evidentiary documents are not attached shall not be included in the total project cost. Ultimately, according to the Port Act and subordinate statutes, the amount recognized as the actual cost for construction project management based on the standards for

Examining the facts described in paragraph (1) in light of the relevant legal principles, the main purpose of which is to enable an administrative agency to submit a plan to perform supervision duties under paragraph (6) of the general conditions of approval of the implementation plan for a harbor project and to conduct supervision upon consultation with the competent management agency, and to submit a copy of the supervision agreement and a copy of the commencement report at the time of commencement of supervision is to ensure that supervision duties are performed in a transparent and appropriate manner. However, it is reasonable to deem that the amount equivalent to the supervision service cost, which can be recognized as being actually paid without reasonable grounds, is in violation of the relevant Acts and subordinate statutes. Therefore, it is difficult to interpret that the administrative agency can unilaterally exclude the amount equivalent to the service cost from the total project cost calculated on the basis of the above additional clauses. Furthermore, when the Plaintiff concludes a supervision contract with regard to paragraph (6) of the general matters, it appears that the Plaintiff expressed his/her intent to take measures in accordance with the approval conditions, but it is difficult to readily conclude that the Plaintiff would have expressed his/her intent to cooperate in a transparent and appropriate manner.

(ii) direct supervision personnel expenses;

According to Article 19 subparagraph 5 (a) of the Enforcement Decree of the Harbor Act, construction project management expenses under Article 31 of the Engineering Industry Promotion Act and construction project management expenses under Article 37 of the Construction Technology Promotion Act; (b) price increase calculated by applying mutatis mutandis Article 64 of the Enforcement Decree of the Act on Contracts to Which the State is a Party in cases of surveying, surveying, designing, constructing, or supervising construction works through a contract; and (d) shall include all expenses incurred in implementing conditions for harbor works, such as taxes, public charges, charges and fees, in addition to the expenses prescribed in items (a) through (c), in total incidental expenses. Meanwhile, according to Article 37 of the Construction Technology Promotion Act, a contracting authority shall pay construction technology service expenses calculated in accordance with other statutes or the calculation standards for construction technology service expenses prescribed and publicly notified by the Minister of Land, Infrastructure and Transport (including construction technology service business entities who perform construction technology services by proxy, research, analysis, procurement, contracting, construction management, appraisal, or management of construction project management at least 70 billion won, and Article 27 subparag. 17.

In light of the above-mentioned circumstances, ① direct supervision pursuant to Article 5(2)3 and Article 94(1)1 of the Enforcement Decree of the Construction Technology Promotion Act, which can be acknowledged by the organic and systematic interpretation of the relevant regulations, can be deemed as replacing the actual cost of construction project management according to the standards for the placement of construction project managers under Article 60. Thus, the cost required for such supervision is equally assessed as the cost of responsible supervision. ② Article 19 subparag. 5(a) of the Enforcement Decree of the Harbor Act provides for the calculation method of the cost by recognizing the cost of construction project management as the incidental cost. It is difficult to readily conclude that the construction project management plan is not directly executed by an administrative agency for the reason that it is difficult for the Plaintiff to directly calculate the cost of construction project management based on the guidelines for the placement of construction project managers under Article 60, and that it is difficult for the Plaintiff to directly consider the cost of construction supervision to be excluded from the cost of construction project management based on the reasonable construction supervision agreement.

C. Construction Interest Related

Article 19(1)6 of the Enforcement Decree of the Harbor Act includes interest rates on construction costs prescribed in subparagraphs 1 through 5 in total project cost: Provided, That where a project operator intentionally delays construction works or fails to confirm the completion of construction at the time prescribed by the implementation plan for a harbor project by gross negligence by the Minister of Oceans and Fisheries, construction for the extended project period is excluded. Article 12 of the former Enforcement Rule of the Harbor Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 239, Jun. 27, 2017; hereinafter referred to as the “Enforcement Rule of the Harbor Act”) provides that where the project period is extended due to a cause attributable to the project operator prescribed by Ordinance of the Ministry of Oceans and Fisheries, such as where the project operator intentionally delays construction works or fails to confirm the completion thereof at the time prescribed by the implementation plan for a harbor project by the Plaintiff’s gross negligence (Article 2).

In addition, the construction interest rate on the project cost stipulated in subparagraphs 1 through 5 of the Enforcement Decree of the Harbor Act is reasonable to be included in the calculation of the total project cost. In light of the relevant legal principles, it is difficult to deem that the administrative agency’s approval of modification of the harbor project implementation plan excluded interest rate on the project period, which is extended en bloc without asking for the causes attributable to the project operator as prescribed by the harbor statutes, based on the approval conditions, violates the purport of the relevant Acts and subordinate statutes. Therefore, it is difficult to interpret that the administrative agency can unilaterally exclude the total project cost from the calculation of the total project cost on the basis of the above additional clauses. Furthermore, there is no evidence to deem that the Plaintiff expressed his/her intent to consent to the approval of modification or expressed his/her intent to waive the right of free use equivalent to the above construction

Ultimately, the total project cost of the instant construction project must be calculated in accordance with the method prescribed by the Port Act and subordinate statutes.

(3) Examination by item

General Incidental Expenses

1) As seen earlier, it is reasonable to view that the inspection supervision service charges, supervision service charges for fire-fighting construction works, and supervision service charges for fire-fighting construction works are included in the total project cost of the instant construction works, so long as they are acknowledged as actual costs through evidentiary documents as construction project management expenses in accordance with the standards for calculating construction technology service costs under Article 37 of the Construction Technology Promotion Act, as long as they are acknowledged as actual costs through evidentiary documents. Taking into account the following circumstances, which can be acknowledged by the purport of entry and arguments in Gap 22-23 and the entire arguments related to the instant construction works, the amount of KRW 619,108,560, fire-fighting construction supervision fees, KRW 18,730,461 shall be included in the total project cost of the instant construction works.

① On October 19, 2009, the Plaintiff entered into a survey supervision service agreement with the Korea Technology Corporation and the Sejong Comprehensive Technology Corporation (including both the instant construction, Kimpo District construction, and the Incheon District construction; hereinafter the same shall apply), and determined the service cost at KRW 3,139,00,000 on November 14, 201, and paid the service payment at KRW 3,139,000,000 prior to the date of issuance of the certificate of confirmation of completion of the instant construction. The Plaintiff paid all the service payment at each construction cost ratio as shown in the attached Table 2.

Within the extent of the amount divided, the expenses for confirmatory supervision services of the construction of this case are sought, and this is acceptable as it is within the reasonable scope.

② On November 30, 2010, the Plaintiff entered into a contract for supervision of the Fire Services Corporation for the T-Fighting Facility Construction and Marina (U.S. Kimpo-si) with the engineering division, and determined the service cost at KRW 97,667,90 on February 6, 2012. The Plaintiff paid all the service cost by the date of issuance of a certificate of confirmation of the completion of the instant construction. The Plaintiff claimed for inspection of the construction cost within the scope of the amount divided in proportion to each construction cost, as shown in attached Table 2, according to the ratio of each construction cost, as shown in attached Table 2. This is acceptable within a reasonable scope.

③ With respect to the order of this court to make a statement about whether the above expenses are actually spent or not, the Defendant did not assert or prove any assertion on the fact that each of the above expenses exceeds the price standard pursuant to Article 19(1)5(a) of the Enforcement Decree of the Harbor Act, Article 37 of the Construction Technology Promotion Act, and Article 37 of the Ministry of Land, Infrastructure and Transport, or that the materials submitted by the Plaintiff do not constitute evidentiary documents pursuant to Article 19(2) of the Enforcement Decree of the Harbor Act.

(ii) direct supervision personnel expenses;

In full view of the following circumstances, the evidence mentioned above, Gap 13, 24-25, and the purport of the entire pleadings, it may be acknowledged that the plaintiff paid KRW 3,168,526,288 as direct supervisory personnel expenses in connection with the instant construction project, and this should be included in the total project cost of the instant construction project as incidental expenses.

① The Plaintiff appears to have performed supervision directly according to the standards for placement of supervisors under Article 60 of the Enforcement Decree of the Construction Technology Promotion Act, as “public corporations and quasi-governmental institutions under the direction and supervision of the Minister of Land, Infrastructure and Transport” under Articles 55(2)3 and 94(1)1 of the Enforcement Decree of the Construction Technology Promotion Act. Therefore, the Plaintiff may directly supervise the Plaintiff in lieu of responsible supervision, and the expenses incurred in direct supervision shall be included in the total project cost of the instant construction project, insofar as they are recognized as having been actually used through evidentiary documents as construction project management expenses based on the standards for calculating construction technology expense under

② On February 12, 2009, the Plaintiff newly established the headquarters for light canal projects, including the instant construction works, to take full charge of the said projects. 3,168,526,288 won for direct supervision of the instant construction works claimed by the Plaintiff was divided in proportion to the total cost of the instant construction works to the total cost of the instant construction works (the Defendant asserted that the labor cost, etc. paid to the employees of the Plaintiff is merely the Plaintiff’s ordinary cost and does not need to be included in the total project cost; however, it is reasonable to view that the said labor cost, etc. was spent in relation to the direct supervision of the instant construction works and cannot be deemed as falling under the Plaintiff’s ordinary business, and thus, should be included in the total project cost of the instant construction works).

③ The cost of supervision over the instant construction project is calculated in accordance with the construction cost standard (No. 2008-846, Dec. 30, 2008, the Ministry of Land, Transport and Maritime Affairs announced to the Ministry of Land, Transport and Maritime Affairs No. 2008-846, Dec. 30, 2008), with respect to the construction project of this case as KRW 5,708,163,63

④ As to the order of this court to make a statement about the disbursement of the above expenses and the order to prove the above expenses, the Defendant did not make any assertion or evidence as to the fact that each of the above expenses exceeds the price standard pursuant to Article 19(1)5 (a) of the Enforcement Decree of the Harbor Act, Article 37 of the Construction Technology Promotion Act, and Article 37 of the Ministry of Land, Infrastructure and Transport, or that the materials submitted by the Plaintiff do not constitute evidentiary documents pursuant to Article 19(2) of the Enforcement Decree of the Harbor Act.

G Construction Interest

1) According to Article 19(1)6 of the Enforcement Decree of the Harbor Act, the type of interest generated during a specific type of construction shall be confirmed as of the date of confirmation of completion under Article 19(1)6 of the Enforcement Decree of the Harbor Act, i.e., the date of issuance of a certificate of confirmation of completion; Provided, however, in cases where a project operator intentionally delays construction or falls under any of the subparagraphs prescribed in Article 12 of the Enforcement Rule of the Harbor Act, the interest on construction for the extended project period shall be excluded as seen earlier (the Defendant asserts to the effect that, if the Plaintiff has reported the use prior to completion under Article 12(5) of the Harbor Act and occupied and used the instant facilities, the recovery of invested capital begins, and thus, the total project cost is calculated by the Port Act and subordinate statutes, and there is no legal basis for recognizing such exception. Accordingly, the Defendant’s assertion cannot be accepted as to whether the Plaintiff seeks an extension of the construction period from June 30, 2012 to December 31, 2015.

It should be determined.

According to the aforementioned evidence and the purport of the entire pleadings, the project period of the instant construction project appears to have been extended by March 31, 2014 due to the Plaintiff’s failure to obtain approval for modification of the implementation plan for reclamation of public waters and the confirmation of completion of construction from the Mayor of Incheon Metropolitan City. Thus, the Plaintiff does not seem to have intentionally delayed construction or failed to meet the project cost. There is no obvious evidence to prove that there was gross negligence by the Plaintiff due to the Plaintiff’s failure to obtain the approval for modification of the implementation plan for reclamation of public waters and the confirmation of completion of construction (the Plaintiff’s failure to comply with the request for supplementation of the confirmation report is not considered since the circumstances after March 31, 2014, for which the Plaintiff

Therefore, it is reasonable to view that construction interest interest accrued until March 31, 2014 should be included in the total project cost of the instant construction project.

2) According to Article 19(1)6 of the Enforcement Decree of the Harbor Act, the interest rate on construction must apply the weighted average receipt rate of deposit banks announced by the Bank of Korea during the project period. However, the method applied by the defendant, namely, the method of applying the weighted average receipt rate (the weighted average receipt rate without distinguishing the grace period) by the Bank of Korea economic statistics system, is not in violation of the language and text of the above Enforcement Decree, and it is difficult to view that the method of applying the above weighted average receipt rate (the weighted average receipt rate without distinguishing the grace period) is unlawful or considerably reasonable. Even according to the plaintiff's assertion, construction calculated by the method of the plaintiff's assertion (the method of individually applying the weighted average receipt rate per month applying the grace period from the time of disbursement to the completion date of each project cost) is lower than the construction interest calculated by the defendant applied by the defendant, and it is difficult to view the method applied by the defendant as unfairly unfavorable to the plaintiff. Accordingly, this part

As seen earlier, Article 19(1)8 of the Enforcement Decree of the amended Act, which is in force at the time of December 24, 2015, should be applied. Thus, Article 19(1)8 of the amended Enforcement Decree was deleted (where a non-management authority executes a harbor project, the non-management authority is granted the right of free use within the scope of total project cost, and the purpose of excluding profits within the scope of total project cost in order to prevent excessive calculation of total project

However, Article 2 of the Addenda to the Enforcement Decree of the Amendment (Transitional Measures concerning the Scope of Total Project Costs) provides that if a non-management authority applied for permission to implement a harbor project before this Decree enters into force, notwithstanding the amended provisions of Article 19 (1) 8, the previous provisions shall apply. Thus, in the case of the instant construction project for which an application for permission to implement a harbor project was filed on May 2009, the amount of profit equivalent to 10% of the design cost, construction cost, incidental cost, etc. should be

(4) The theory of lawsuit

As of March 31, 2014, the total project cost (including profits) of the instant construction project, which was calculated by applying interest rates sought by the Plaintiff within the scope of interest interest during construction applied by the Defendant, as of March 31, 2014, as of the date of issuance of a certificate of confirmation of completion of the instant construction project. Moreover, as seen earlier, insofar as the Defendant notified the total project cost as stated in the attached Table 2’s Schedule 2’s “project cost notified to the Defendant” column, the Plaintiff may have a benefit to seek confirmation of the right of free use equivalent to the above total project cost.

4. Conclusion

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