(영문) 부산고등법원 2009.7.3.선고 2009누1884 판결

The judgment of the court of first instance shall be revoked. The judgment of the court of first instance shall be revoked around the day of February 28, 1996 for the Class 1 facilities listed in the attached list, and from March 8, 1996 for the Class 2 facilities, the rate of reduction of 80% under the provisions on the use of the facilities in the trade port as of the above date from March 8, 1996 for the Class 2 facilities, to the day of KRW 2,368,735,610, and KRW 190,500 for each of the above facilities to the day of 190,500. Selectively, the right to use each of the above facilities is confirmed to be free of charge for the plaintiff from February 28, 1996 to February 28, 2016, and from March 8, 1996 to October 25, 206.

Reasons

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence 1 through 4-1, evidence 5-1 through 10, evidence 6-1 through 11, evidence 1-1 through 4, evidence 3-1, 2, Eul evidence 6, evidence 7-1, and evidence 7-2.

A. On October 25, 1993, the Minister of Maritime Affairs and Fisheries publicly announced the subject matters of attracting private capital and investment support in order to expand harbor facilities in Msan Port.

(a) Area: 63-1 (Dumsan Port 4) and 3 other areas in Changwon-si, Changwon-dong; and

(b) Facilities: container treatment facilities, wharf construction, site preparation, etc.;

(3) Coverage of investment (based on the Harbor Act, the Enforcement Decree of the Harbor Act, and the Enforcement Rule of the Harbor Act)

Facilities to be reverted to the State, among harbor facilities constructed by the public, shall revert to the State upon completion upon completion.

shall be paid in a way that annual usage fees shall be settled from the total project cost.

Recognition of Gratuitous Use

B. According to the above notice, the plaintiff submitted to the Minister of Maritime Affairs and Fisheries through the Minister of Masan Regional Maritime Affairs and Fisheries an application for construction of new facilities in the list of separate facilities (as part IV CFS storage facilities and affiliated buildings, hereinafter referred to as "first facilities") to the Minister of Maritime Affairs and Fisheries through the Minister of Maritime Affairs and Fisheries, and completed the above construction on April 23, 1995, with the approval of the execution plan on March 23, 1994, and with the approval of the execution plan on January 23, 1995, with the approval of the execution plan on April 23, 1995.

In addition, the Masan Regional Maritime Affairs and Fisheries submitted to the Minister of Maritime Affairs and Fisheries an application for packing and repair works of the 2 facilities listed in the list of the attached facilities (hereinafter referred to as "second facilities"), and completed the execution permission of the non-management authority on October 20, 1995 from the Minister of Masan Regional Maritime Affairs and Fisheries on December 15, 1995, with the approval of the execution plan on December 15, 1995, the above construction commences on December 15, 1995, and completed it in KRW 190,500,000 in total project cost on March 8, 1996.

As a result, the first and second facilities (hereinafter referred to as "each facilities of this case") were reverted to the defendant upon completion of the construction under Article 17 (1) of the former Port Act (amended by Act No. 5453, Dec. 13, 1997; hereinafter the same).

C. The plaintiff reported to the Minister of Maritime Affairs and Fisheries on Sep. 1, 1996 that he will use each of the facilities of this case free of charge from the completion date of each construction of the facility of this case until it reaches the total cost according to the provisions of Article 17(3) of the former Harbor Act and Article 19(2) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 15379, May 24, 1997; hereinafter the same shall apply). The Minister of Masan-si and the Minister of Maritime Affairs and Fisheries accepted the plaintiff's report of free use of the facility of 2nd July 22, 1996, and without separately determining the user fee to be determined by the regulations on the use of harbor facilities and the user fee of the free-use trade port of this case (hereinafter referred to as "user fee regulations").

D. Meanwhile, the Minister of Maritime Affairs and Fisheries has extended the rate of reduction to 80% until the date of enactment and implementation of the provision on January 26, 1996, and has not changed to 80%, but the reduction rate of reduction to 20% until the date of implementation of the provision on the rate of reduction to 20% since the date of implementation of the provision on the usage fee of the port facilities (containers store and container yard) in accordance with the guidelines of the Minister of Maritime Affairs and Fisheries under Article 19 (4) 6 of the Rules on the Use of Harbor Facilities (repealed on January 25, 1996) by December 4, 1993 through 50% since April 17, 1995.

E. The Minister of Masan-si and the Minister of Maritime Affairs and Fisheries, by the year of 2004, adjusted the total project cost by applying the rate of 80% reduction to the usage fees of each facility of this case, and notified the Plaintiff of the result of the settlement in February 7, 2005, which was amended on June 25, 2002, and changed from July 1, 2002 to 50% on the ground that the rate of reduction of usage fees for the last period from July 1, 2002 to December 31, 2004 changed from 80% to 50% of usage fees for the facilities of this case (in fact, the rate of reduction of 80% has been applied to the total operating expenses, so it shall be adjusted additionally by applying the rate of reduction of usage fees for the last period from July 1, 200 to 31, 2005 to 30% of total operating expenses).

F. Under the premise that the Plaintiff does not use other harbor facilities than each of the instant facilities, where the Plaintiff continues to apply the initial reduction rate of 80% to the usage fees of each of the instant facilities, the first facility may be used from 2021 to 2021, and the second facility may be used from 2006 to 2006, while when applying the reduction rate of 50% as changed after July 1, 2002, the first facility may be used for free until 2008, while the second facility may be used for free until December 31, 2005. However, the second facility shall pay the Defendant the excess amount of 64,879,740 won exceeding the total project cost.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

With respect to each of the facilities of this case on the following grounds, the Plaintiff shall settle the total project cost and the period of free use, calculated by continuously applying the initial reduction rate of 80%, notwithstanding the amendment of the user fee provision, and shall be determined by settling the period of free use, and shall be selected against the Defendant as stated in the purport of the claim for the confirmation of the principle of free use right (the primary claim in the purport of the claim seems to be virtually the same as the reduction rate and the selective claim are focused on the period of use)

(1) In light of the contents and purport of Article 19(2) of the former Enforcement Decree of the Harbor Act, when using the pertinent harbor facilities in the total project cost, the usage fee at the time of completion shall be based on the usage fee, and the usage fee at the time of completion shall be based on the usage fee applied to the reduction rate. Thus, even if the reduction rate is changed later, the free use period of the pertinent harbor facilities by the non-management authority shall be determined by the method of calculating the total project cost

(2) Even if not, the Plaintiff plans to use each of the instant facilities free of charge at the time of completion within the scope of the total project cost based on 80% of the applicable rate of reduction and exemption, and the Plaintiff participated in the harbor project as a non-management authority, and the Defendant also has continuously applied the initial reduction and exemption rate of 80% until February 7, 2006 and settled it in the total project cost by continuously applying the aforementioned rate of reduction and exemption notwithstanding the amendment of the usage fee regulations until February 7, 2006. In light of the above, it would be against the principle of trust protection to settle the usage fee from the total project cost by applying the rate of reduction and exemption rate of 50% changed by comparison from July 1, 202 to the period from February 7, 2006.

(b) Relevant statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the reduction rate of usage fees changed after completion is applied

(A) Article 17(1) and (2) of the former Harbor Act provides that the establishment of a harbor created by a non-management authority for a harbor project shall revert to the State or a local government upon completion of the project, and the non-management authority shall be entitled to use the harbor facilities without compensation within the extent of the total project cost, as prescribed by the Presidential Decree.

Accordingly, Article 19 (2) of the former Enforcement Decree of the Harbor Act provides that the period in which a non-management authority may use the harbor facilities free of charge shall be until the total amount of the usage fees under subparagraphs 1 through 3 reaches the total project cost, and that the usage fees of the harbor facilities shall be based on the usage fees of the harbor facilities at the time of completion of the port facility concerned in case of subparagraph 1 (the usage fees of the harbor facilities reverted to the State or a local government for the use of the relevant harbor facilities) and subparagraph 2 (the usage fees of the harbor facilities collected from another person for the use of the facilities) and subparagraph 3 (the usage fees of other harbor facilities exempted from the usage fees in addition to the relevant harbor facilities as a result of securing the total project cost).

On the other hand, Article 27 (2) of the former Harbor Act provides that a harbor facility operator, etc. may collect user fees from users of port facilities, and the proviso provides that a person prescribed by the Presidential Decree may be exempted from user fees in whole or in part.

Accordingly, Article 20-2 (1) of the former Enforcement Decree of the Harbor Act provides that the management agency shall determine the types, rates, etc. of the user fees for harbor facilities, while Article 21 (1) and (2) provides that the user fees may be fully or partially exempted (Article 21 (1) 1 through 9) and necessary matters concerning the scope, period, etc. of exemption from the user fees for harbor facilities shall be determined by the operator of port facilities.

(B) Each of the instant facilities is the pertinent harbor facilities created by the Plaintiff, who is a non-management authority, and reverted to the Defendant. Accordingly, the user fee related thereto shall be calculated based on the user fee at the time of completion of the relevant harbor facilities, based on Article 19(2)1 of the former Enforcement Decree of the Harbor Act.

In this context, the term “user fee at the time of completion of construction of a harbor facility” means the fee applied before the rate of reduction or exemption of the user fee or the fee applied at the time of completion of construction of the harbor facility. ① The main sentence of Article 27(2) of the former Harbor Act and Article 20-2(1) of the former Enforcement Decree of the Harbor Act provide separate provisions for the reduction or exemption of the user fee. As such, the concept of the user fee itself does not include the contents of the reduction or exemption of the user fee. ② The reduction of the user fee of the harbor facility means that the rate of reduction or exemption of the user fee at the time of completion of construction of the harbor facility is determined only in cases falling under subparagraphs 1 through 9 of Article 21(1) of the former Enforcement Decree and the rate of reduction or exemption of the user fee at the time of completion of construction of the harbor facility or the rate of reduction or exemption of the user fee at the time of completion of construction of the harbor facility is considered to have the nature of setting the user fee at the time of completion of construction at least 10%.

(C) Therefore, the Defendant’s measure that adjusted the total project cost and the user fee calculated by applying the rate of reduction of 50% from the beginning of 80% to 50% on the ground that the rate of reduction of the user fee for each of the instant facilities was reduced from the beginning of July 1, 2002 after completion of construction, is justifiable, and the Plaintiff’s first assertion is without merit.

(2) Whether the principle of trust protection is violated or not

According to the facts acknowledged above, the Minister of Masan Regional Maritime Affairs and Fisheries accepted the Plaintiff’s report of free use in each of the facilities of this case without separately setting the total project cost and the user fee to be settled, and the period of free use should be separately determined by the user fee regulation, and even if the rate of reduction of user fee for marinasan Port 80% from July 1, 2002 to 50% was reduced and changed by the amendment of the user fee regulation, the user fee shall be calculated by applying the existing rate of reduction from 80% until December 31, 2004 to the total project cost and the settlement was made with the Plaintiff on February 7, 2006 by applying the changed rate of reduction of 50% from July 1, 202 to December 31, 2004 to the original rate of reduction of user fee for the period from July 1, 2002 to December 31, 2004 to the new rate of 96.

In addition, the above point is as follows: ① the time when the Minister of Masan Regional Maritime Affairs and Fisheries first started to apply the rate of reduction of 50% of the rent for the harbor facilities of Msan Regional Maritime Affairs and Fisheries on December 4, 1993; ② the Minister of Masan Regional Maritime Affairs and Fisheries expanded the rate of reduction to 80% on April 17, 1995; and the time when the Minister of Masan Regional Maritime Affairs and Fisheries publicly announced the facilities subject to inducement and investment support to the public operator of Msan Regional Maritime Affairs and Fisheries on October 25, 1993; and the Plaintiff participated in the harbor project of this case according to the above public notice, it is difficult to view that the rate of reduction of 80% of the rent for each of the facilities of this case would have been applied to the Plaintiff, and it is difficult to view that the Plaintiff participated in the harbor project, without any evidence to change the rate of reduction of 80% of the rent for each of the facilities of this case after the revision of the fee.

Therefore, the plaintiff's second argument is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. However, since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Maleman (Presiding Judge)

Kim Jong-hee

Lee Young-young

Site of separate sheet

List of the City Water

1. A first-class facility;

Location: Changwon-si, Changwon-dong 63-1

Kind: Warehouse and miscellaneous house

Structure and size: 3,313m of reinforced concrete structure sloping roof 1st floor CFS warehouse facilities

And 189m of the mechanical exhibition room of the first floor of reinforced concrete sloping roof

Total project cost: 2,368,735,810 won

Date of completion: February 28, 1996

2. Second facilities:

Location: Changwon-si, Changwon-dong 63-1

Classification: Structures

Kind and quantity: 15,571С (A Bable block 14,525m, Bable block 3,046m)

Total project cost (value of property): 190,500,000 won

Date of completion: March 8, 1996

Related Acts and subordinate statutes

former Harbor Act (amended by Act No. 5454 of Dec. 13, 1997)

Article 9 (Executor, etc. of Harbor Works)

(1) Construction works concerning the construction, reconstruction, maintenance, repair, dredging, etc. of harbor facilities (hereinafter referred to as "harbor construction works") shall be governed by this Act.

the Minister of Maritime Affairs and Fisheries in case of designated harbors and land, except as otherwise provided in other laws.

Harbors shall be implemented by the Mayor/Do Governor, respectively.

(2) The President when a person other than the managing authority (hereinafter referred to as a “non-managing authority”) intends to execute harbor works.

The plan for harbor works shall be prepared under the conditions as prescribed by the Presidential Decree and shall be approved by the managing authority: Provided, That the same shall not apply

The State or local government shall not be subject to the reversion pursuant to the proviso of Article 17 (1).

The maintenance and repair works of harbor facilities shall be reported under the conditions as prescribed by the Presidential Decree. Article 10 (Establishment, Approval, etc. of Implementation Plans)

(1) The executor of a harbor project shall execute a harbor project before commencement of the harbor project under the conditions as prescribed by the Presidential Decree.

The Si plan shall be formulated and publicly announced.

(2) Where a non-management authority intends to establish an implementation plan for harbor works referred to in paragraph (1), the Presidential Decree.

The approval of the Office of Administration shall be obtained as prescribed in this Act. Any modification of the approved contents.

The same shall also apply in the case.

Article 17 (Reversion, etc. of Harbor Facilities)

(1) The lands and harbor facilities which are developed or installed by the harbor works of the non-management agency as referred to in Article 9 (2).

At the same time as completion shall revert to the State or local governments: Provided, That land and harbor as prescribed by the Presidential Decree

Facilities shall not apply.

(3) The non-management authority shall have jurisdiction over harbor facilities vested in the State or a local government under paragraph (1).

Within the extent prescribed by the Presidential Decree, a free use may be made under the conditions as prescribed by the Presidential Decree.

Article 27 (Port Facilities, User Fees, etc.)

(1) A person who intends to use harbor facilities shall obtain permission from the management authority, as prescribed by Presidential Decree.

A person delegated or entrusted by the managing authority or the managing authority to operate port facilities (hereinafter referred to as "harbor facilities operation").

A person who has entered into a lease contract or entered into the lease contract concerned (hereinafter referred to as the “lease contractor”).

any person shall report to the management agency.

(2) A harbor facility operator or a lessee shall be from persons who use the harbor facilities pursuant to paragraph (1).

User fees may be collected: Provided, That with respect to persons prescribed by the Presidential Decree, all or part of such user fees shall be collected.

may be partially exempted.

(3) A non-management agency operator or lessee of harbor facilities shall collect, etc. usage fees under paragraph (2).

Matters related to such matters shall be reported to the management agency in advance.

(4) With respect to the methods of using harbor facilities and usage fees, provisions of this Act or an order issued under this Act shall be made.

outside shall be determined by the operator or lessee of the harbor facility concerned.

(1) Enforcement Decree of the former Harbor Act (amended by Presidential Decree No. 15379 of May 24, 1997)

Article 18 (Scope of Total Project Costs)

The total project cost under the provisions of Article 17 (2) and (3) of the Act shall be limited to the total amount of all the costs calculated in accordance with the following standards relating to the harbor works on the basis of the date of confirmation of completion of the harbor works concerned:

Article 19 (Free Use, etc. of Converting Harbor Facilities)

(1) Harbor facilities reverted to the State or a local government pursuant to Article 17 (3) of the Act shall be free of charge.

Any person who intends to use shall report in advance to the management agency.

(2) The period during which the harbor facilities may be used without compensation pursuant to paragraph (1) shall be as follows:

Until the total amount reaches the total project cost calculated under Article 18. In such cases, no amount shall be included in the calculation;

Fees for the use of harbor facilities applicable in calculating the period of use for business purposes shall be in the case of subparagraphs 1 and 2.

The fees for the use of harbor facilities at the time of completion of the harbor facilities concerned shall be the basis, and in case of subparagraph 3, the relevant port

shall be based on the user fee at the time of use of the snow.

1. Rent in cases where the harbor facilities reverted to the State or local governments are used commercially;

2. Charges for the use of harbor facilities collected from others under Article 28 of the Act;

3. Using the harbor facilities, the usage fees of which are exempted pursuant to Article 21 (1) 8. Article 20-2 (Use of Harbor Facilities)

(1) A harbor with permission from the managing authority for use of harbor facilities under the main sentence of Article 27 (1) of the Act.

A person who intends to use facilities shall manage an application stating the following matters as determined by the management agency:

Matters such as kinds and rates of user fees shall be prescribed by the management agency. In such cases, the management agency shall determine the kinds and rates of user fees.

(Dismissal omitted)

Article 21 (Exemption from User Fees of Harbor Facilities)

(1) The case where all or part of the usage fees may be exempted pursuant to the proviso of Article 27 (2) of the Act.

The following shall be defined:

8. Construction of harbor facilities reverted to the State or a local government under Article 17 (1) of the Act;

For the conservation of total project cost required, the use of any other harbor facility than the harbor facility shall be made.

9. Where it is deemed necessary for the management and operation of a harbor.

(2) Matters necessary for the scope, period, procedure, etc. of exemption from harbor facility usage fees under paragraph (1).

The harbor facility operator or lessee shall be determined by the harbor facility operator or lessee.

Regulations on the Use of Harbor Facilities in Trade Port (Ministry of Land, Transport and Maritime Affairs Notice No. 2008-33 of April 7, 2008)

heading)

Article 8 (Types, etc. of Harbor Facility Usage Fees)

(1) The types of user fees for harbor facilities collected by the head of a regional office pursuant to Article 32 (5) of the Act and Article 20-2 (1) of the Decree

Facilities subject to collection, rates, collection standards, etc. shall be as specified in attached Table 1.

[Attachment 1] Types, rates, and standards for calculation of user fees for port facilities (related to Articles 7 and 8)

1. Kinds and rates of usage fees;

A person shall be appointed.

Article 9 (Scope, etc. of Exemption from Usage Fees)

(1) In cases falling under Article 21 (1) 1 through 9 of the Decree, all of the user fees may be exempted: Provided, That in cases falling under subparagraph 3,

In cases falling under subparagraph 4 of the same paragraph, all or part of the user fee may be exempted.

(3) "Where deemed necessary for the management and operation of a harbor under Article 21 (1) 11 of the Decree" means:

For example, as follows:

4. Racing specified in attached Table 2 [Attachment Table 2] reduction rates and reduction rates by harbor facility use fee, and exemption or reduction by harbor facility use fee (related to Article 9] in order to revitalize a harbor, promote balanced development between harbors, and promote distribution

A person shall be appointed.

심급 사건

-창원지방법원 2009.2.12.선고 2008구합1793

부산고등법원 2009.7.3.선고 2009누1884

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