(영문) 전주지방법원 2018.8.9. 선고 2017구합2339 판결

A. The Plaintiff is an organization that has completed business registration on June 24, 2008, and conducted cleaning of the ports in the Gunsan Port and treating various wastes.

B. After the Ministry of Oceans and Fisheries conducted audit procedures on the use of harbor facilities, the Ministry determined the user fee for the Plaintiff on the ground that the Plaintiff did not impose the user fee on the Plaintiff even if the Plaintiff was not exempted from the user fee for the harbor facilities, and notified the Plaintiff of the fact that the Plaintiff additionally collected the user fee for the last five years.

C. On June 16, 2017, the Defendant issued a prior notice of the disposition of collection (excluding value-added tax) to the Plaintiff regarding the exemption of the user fee for the use of the land located in the 11th, YYY-dong, YY-dong, YY-dong, 11 (hereinafter referred to as “instant site”) and the building on the ground (hereinafter referred to as “instant building”).

D. On July 7, 2017, the Plaintiff filed an application for review on the said disposition with the Ministry of Oceans and Fisheries, and dismissed the Plaintiff’s application for review on September 11, 2017 at the Audit and Inspection Council of the Ministry of Oceans and Fisheries.

E. On September 26, 2017, the Defendant rendered a disposition that the Plaintiff would pay KRW 116,565,510 (including value-added tax) for the recent five years from August 29, 2012 to August 28, 2017 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 1 through 3, 6, 8, 11, 12 (including branch numbers where there are branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

1) The Plaintiff is a non-profit corporation designated by the Gun Industrial Complex to conduct cleaning business of the Gun Industrial Complex. The Plaintiff constitutes a “non-profit corporation that uses harbor facilities, such as managing, managing, repairing, cleaning, etc. of harbor facilities, within a harbor or for loading and unloading of a harbor.” Thus, the Plaintiff falls under the scope of exemption from fees for the use of harbor facilities. Thus, the instant disposition against the Plaintiff is an illegal disposition that violates the statutes related to fees for the use of harbor facilities.

2) Even if the Plaintiff is not eligible for exemption from usage fees, the Plaintiff’s failure to pay usage fees for a considerable period of time is due to the fact that the exemption from usage fees was justified by relevant laws and regulations on port facility usage fees, and there is no cause attributable to the Plaintiff with respect to such trust of the Plaintiff, and such trust of the Plaintiff should be protected.

B. Defendant

1) The key issue of the instant case is whether the Plaintiff used harbor facilities to perform duties entrusted or designated by the Port Management Office (Military & Fisheries Office). The Defendant did not entrust the Plaintiff with cleaning of harbor facilities, and the Plaintiff did not use harbor facilities to perform duties entrusted or designated by the Defendant. Thus, the Plaintiff did not meet the requirements for exemption from usage fees under relevant statutes.

2) In the instant case, since the Defendant exempted the Plaintiff from the usage fee in the form of “under the conditions as prescribed by the relevant Acts and subordinate statutes, the Defendant may impose the exempted usage fee again on the Plaintiff. Such disposition is due to the Plaintiff’s major public interest loan, and the Plaintiff cannot assert that the instant disposition violates the principle of protecting trust

3. Whether the instant disposition is lawful

A. Relevant provisions

It is as shown in the attached Form.

B. Relevant legal principles

Article 30 (4) of the Harbor Act provides that "the Minister of Oceans and Fisheries, a harbor facility operator, or a lessee may collect user fees from persons who use harbor facilities pursuant to paragraphs (1) and (2): Provided, That a person prescribed by Presidential Decree may be exempted from all or part of the user fees," and Article 27 (1) of the Enforcement Decree of the Harbor Act provides that a person falling under any of the following subparagraphs may be exempted from all or part of the user fees for the harbor facilities pursuant to the proviso of Article 30 (4) of the Harbor Act, and lists "the non-profit law for marine transportation and harbor prescribed by the Minister of Oceans and Fisheries (No. 4)" as eligible for exemption from the user fees for the harbor facilities. Ultimately, a non-profit corporation related to marine transportation and harbor prescribed by the Minister of Oceans

On the other hand, according to Article 9(2)2 of the Regulations on the Facility and Fees for Trade Port, Etc., in order to manage a harbor or load and unload a harbor, a non-profit corporation that uses harbor facilities may be exempt from user fees for a harbor facility because it falls under a non-profit corporation related to a harbor prescribed by the Minister of Oceans and Fisheries as stipulated in Article 27(1)4 of the Enforcement Decree of the same Harbor Act, for the purpose of managing a

C. Determination

1) Whether the Defendant entrusted cleaning to the Plaintiff

A) First, we examine whether the Defendant entrusted or designated a port cleaning to the Plaintiff.

B) According to Gap evidence Nos. 8, the defendant (the name before the change of the defendant) is acknowledged as having notified the plaintiff (the Gunsan Loading & Unloading Association is the name before the change of the plaintiff) of the following matters on April 3, 1986.

The title: 1. 2. 1. 2. omitted 3. omitted 3. : The primary port cleaning is conducted immediately after the completion of the loading and unloading work by the owner of the harbor, but it is in fact unreasonable situation that the owner of the harbor has been dependent on the cargo handling station or the management agency because it is difficult to secure cleaning personnel, proper cleaning, etc. ..4. 8. 1. 4. 1. 1. 86,3. 15. 86, 15. 1. 2. 1. 1. 2. 2. 3. 1. 2. 1. 1. 1. 2. 2. 3. 2. 1. 2. 1. 1. 1. 1. 1. 1: 1. 1. 1. 1. 1. 1. 2. 2. 3. 3. 1. 1. 2. 3. 3. 3. 1. 1. 1.

C) In light of the above facts of recognition, there is no room to regard that the defendant, as the plaintiff's assertion, entrusted the business of cleaning the port to the plaintiff so that the effective cleaning of the port can be conducted by appointing the regular cleaning unit.

However, on the other hand, the following facts and circumstances acknowledged by adding the whole purport of arguments in Gap evidence Nos. 10 and 11 to the statement, namely, ① Port cleaning shall be held by the loading and unloading company, and the cleaning and unloading company shall be entrusted to another person, but even in this case, the loading and unloading company shall be held responsible for the management, such as guidance and supervision. According to Article 31(2) of the Regulations on the Operation of Port Facilities, the loading and unloading company shall report the contents to the head of the loading and unloading agency, and the head of the port cleaning shall be able to instruct the loading and unloading company or the consignee of the matters necessary for maintaining the port cleanness, ② The plaintiff's member of the port cleaning company shall be the loading and unloading company, ② the plaintiff's member of the port cleaning company shall be conducted directly by the plaintiff, but the cleaning expenses shall be paid by the loading and unloading company with the structure of the building of the loading and unloading company, ④ the defendant shall be deemed to have agreed to be entrusted with cleaning or cleaning of the members of the loading and unloading company in accordance with the operating rules.

Therefore, the plaintiff's assertion on different premise is without merit, and the plaintiff is not eligible for exemption from user fees. Therefore, barring special circumstances, the defendant is obliged to pay the user fees for harbor facilities.

2) Whether the instant disposition violates the principle of trust protection

A) Relevant legal principles

In general, in administrative legal relations, the principle of the protection of trust is applied to the acts of an administrative agency: first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency should have a reason attributable to the individual when the statement of opinion is well-grounded; third, the individual should have trusted the statement of opinion; third, the administrative agency should have conducted any act in violation of the above statement of opinion; fourth, the administrative agency should have made a disposition contrary to the above statement of opinion so that the interests of the individual who trusted the statement of opinion may be infringed. If any administrative disposition satisfies these requirements, it is unlawful (see Supreme Court Decisions 98Du19070, Mar. 9, 199; 2004Du466, Jun. 9, 2006; 2006Du10931, Jan. 17, 2008).

B) Specific determination

According to the facts stated in Gap evidence Nos. 4 and 12-2, there is no dispute between the parties, or according to the defendant's notification about the permission for use of harbor facilities to the plaintiff around August 22, 2014, the defendant sent official documents as follows, and the plaintiff applied for the permission for exclusive use of harbor facilities to the defendant for the exclusive use of military harbor facilities once every three years, and obtained the permission for use of harbor facilities from the defendant. It can be acknowledged that the defendant has been exempted from the user fees without being required to pay the user fees for the use of the harbor facilities only once.

A person shall be appointed.

In addition to the above facts, considering the following facts: (a) the Plaintiff appears to have paid a rental fee which is lower than the user fee which the Defendant may impose on trust in the measure of exemption of the user fee, and (b) the Defendant alleged that the notification of exemption of the above user fee received by the Plaintiff was made in the form of “the use fee shall be governed by the relevant Acts and subordinate statutes without setting a certain amount,” but the notification received by the Plaintiff cannot be deemed as a reservation expression, such as “the content of the notification shall be governed by the relevant Acts and subordinate statutes, such as the rules on the use of harbor facilities,” etc. ( therefore, Supreme Court Decision 96Nu8171 Decided July 26, 196, which the Defendant invoked, is inappropriate to be invoked in the instant case because the case differs from the case), and (c) the disposition of this case is unlawful as it infringes the Plaintiff’s trust that has trusted the Defendant’s disposition of exemption of the user fee.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.