South East East Development Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Park Tae-tae et al., Counsel for the defendant-appellant)

Incheon Harbor Corporation (Law Firm LLC, Attorneys Gyeong-ho et al., Counsel for the plaintiff-appellant)

July 15, 2016

Seoul Administrative Court Decision 2014Guhap31487 decided January 29, 2015

1. Of the judgment of the court of first instance, the part against the plaintiff regarding the disposition described in paragraph 2 below shall be revoked.

2. On April 16, 2014, the Defendant revoked the disposition imposing fees for the use of harbor facilities against the Plaintiff.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant's notification of the change in the rates of port facility usage fees as of March 31, 2014 to the plaintiff and the disposition of imposition of port facility usage fees as of April 16, 2014 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Scope of adjudication of this court;

In the first instance court, the Plaintiff sought to revoke the Defendant’s notice of change in the rates of fees for using harbor facilities, as stated in the purport of the claim. However, the first instance court rejected the Plaintiff’s claim for cancellation of the notice of change in the rates of fees for using harbor facilities among the instant lawsuits, and the Plaintiff did not object to this part, which was excluded from the scope of this court’s judgment. Accordingly, the scope of this court’s judgment is limited to the Defendant’s imposition of fees for using harbor facilities on April 16, 2014.

2. Details of the disposition;

A. The Plaintiff is a public institution that operates the business of selling electricity to the Korea Electric Power Corporation using coal-generating technology, the construction business of electric power plants, etc., and uses the ○○ Power Plant Port Facilities (hereinafter “instant port facilities”) located in Incheon Cheongjin-gun ( Address omitted) (hereinafter “○○”). The Defendant is an institution that manages the instant port facilities by taking over duties concerning the development, management, and operation of the Incheon Port Facilities from the Incheon Regional Maritime Affairs and Fisheries Office on July 11, 2005.

B. For the purpose of securing contact facilities necessary for the operation of the ○○ ○○ Maritime Power Plant, the Plaintiff installed the lin wharf, rin wharf, rin wharf, and water wharf among the instant harbor facilities at the Plaintiff’s expense. From August 1, 2004, the Plaintiff paid the Incheon Maritime Maritime Maritime Maritime Maritime Maritime Affairs and Fisheries Office and the Defendant transferred cargo entry and departure fees applying the rate of other ports for about 10 years.

C. On March 31, 2014, the Defendant notified the Plaintiff of the change of the rate to the effect that the existing rate of the user fee for harbor facilities (cargo entry fee) increases from April 1, 2014 to that of Incheon port in accordance with the “Regulations on the Use of Harbor Facilities and User Fee for Trade Port (Ministry of Oceans and Fisheries’s announcement; hereinafter “instant announcement”) and issued a disposition imposing KRW 12,261,690 on Apr. 16, 2014 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 6, the purport of the whole pleadings

3. Parties’ assertion and key issues of this case

A. The plaintiff's assertion

1) A harbor facility operator shall report to the Minister of Oceans and Fisheries pursuant to Article 30(7) of the former Harbor Act (amended by Act No. 12545, Mar. 24, 2014; hereinafter “Harbor”) when changing the usage fee rate and collection method, and undergo deliberation and resolution by the Port Authority pursuant to Article 10 subparag. 6 of the Port Authority Act. The Defendant issued the instant disposition without following the aforementioned procedure.

2) Since there is no relevant statute that permits the so-called undeveloped harbor facilities, which are not owned by the State, to impose usage fees, the Defendant cannot impose and collect usage fees for the use of the instant harbor facilities, which are owned by the Plaintiff.

3) In addition, the Defendant is entitled to only charges for the use of harbor facilities managed by the Defendant. Since the Port Authority, etc. strictly separates “management” and “Jurisdiction,” the Port Authority, etc. may not immediately impose usage fees for the instant harbor facilities solely on the ground that they fall under the jurisdiction of

4) The instant public notice by delegation under Article 30(4) and (6) of the Harbor Act, Article 28(2) of the Enforcement Decree of the Harbor Act, and the fees imposed by the Port Authority pursuant to Article 30(3) of the Port Authority Act and Article 12(1) and (2) of the Enforcement Rule of the same Act on the use of, and the fees for, the relevant harbor facilities (hereinafter “instant provision”) shall be imposed only on a person who uses the pertinent harbor facilities.

In other words, the notice of this case and the "cargo entry and departure fee", which is a kind of fee under the provision of this case, should be imposed on the owner in cases where the cargo uses harbor facilities according to its language and text, and the subject of collection should also be limited to the scope related to the quantity, loading, storage, etc. of the cargo. However, since the notice of this case and the provision of this case provide that the cargo entry and departure fee may be imposed in cases where the relevant harbor facilities are used, such as the navigation route and anchorage of the relevant harbor, they deviate from the delegation scope of the mother law. Accordingly, the disposition

5) The Plaintiff paid cargo entry and departure fees applying the fee rate for the last 10 years according to the measures of the Minister of Oceans and Fisheries, and the Defendant has continuously imposed a low rate on the Plaintiff according to the above measures, and the instant disposition changing the rate without any change in circumstances is contrary to the principle of trust protection.

6) In applying the rate of other paragraphs to other power plants not included in the Incheon Port with the Plaintiff, applying the rate of Incheon Port only to the Plaintiff is against the principle of equality, and when imposing excessive costs to the Plaintiff due to the instant disposition, this would lead to an increase in energy cost. In light of the fact that the instant disposition is an abuse of discretion.

B. Defendant’s assertion

1) Since the anchorage and sea route of a ship seeking entry into the instant harbor facilities are “harbor facilities outside the port zone” managed by the Defendant, the Defendant may impose and collect fees for the use of harbor facilities from the Plaintiff pursuant to Article 30(1) of the Port Authority Act.

2) The Minister of Oceans and Fisheries publicly announced the detailed classification, etc. of the usage fees and rents collected by the Port Authority pursuant to Article 30 of the Port Authority Act and Article 13(2) of the Enforcement Decree of the same Act, based on the public notice No. 2013-28 of the Port Authority Act. The Defendant enacted the instant provision pursuant to Articles 4(3) and 30(3) of the Port Authority Act and Article 12(1) and (2) of the Enforcement Rule of the same Act.

According to the provisions of this case, harbor works may collect charges, including the cost of loading and unloading from a person who uses harbor facilities, and in the event that a ship carries cargo and uses harbor facilities, such as a sea route and anchorage, both the owner and the owner of the ship use the relevant harbor facilities, the disposition of this case issued on the same premise is legitimate. The Supreme Court en banc Decision 78Nu407 Decided August 26, 1980 also holds that “In the event of loading and unloading of cargo within a harbor facilities, i.e., loading and unloading of cargo through a sea route in a harbor, i.e., loading and unloading of cargo within a harbor, and even if loading and unloading of cargo through a private facility, it may collect the cost of loading and unloading.

C. Major issues of the instant case

The Defendant: (a) deemed that the Plaintiff used harbor facilities outside the harbor area of Incheon Port to load and load freight to be used as fuel for thermal power generation; and (b) rendered the instant disposition imposing freight charges applying the rates of Incheon Port. However, under the Port Authority Act and the Enforcement Decree of the same Act, the Port Authority may impose and collect usage fees for the port facilities managed by it. Therefore, the main issues of the instant case are ① whether the Defendant “management” of waters, facilities, mooring facilities, including the route and anchorage of the instant port facilities; and ② whether the Plaintiff “use” of the anchorage and sea route, which is outside the harbor area of Incheon Port to load and load freight.

We first examine the procedural legitimacy of the instant disposition, and further examine the substantive legitimacy of the instant disposition.

4. Whether the procedure of the instant disposition is legitimate

A. Article 30(7) of the Harbor Act provides that “The operator of a port facility or a lessee of a port facility shall report to the Minister of Oceans and Fisheries matters concerning the rate of fees and collection method thereof under paragraph (3).” Article 30(3) of the Port Authority Act provides that “When the Corporation collects fees pursuant to paragraph (1), it shall determine and report to the Minister of Oceans and Fisheries the rate, etc. of fees for each type, as prescribed by Ordinance of the Ministry of Oceans and Fisheries. The same shall also apply to any modification to the reported matters.” Article 10 Subparag. 6 of the Port Authority provides that “The Port Authority shall establish the Port Authority to deliberate and resolve on the establishment of the standard of fees and

B. In full view of the purport of the arguments in the above evidence Eul evidence Nos. 1 and 14 (including the main number), the Incheon Regional Maritime Affairs and Fisheries Office manages the port facilities. On August 16, 2011, the Incheon Maritime Maritime Affairs and Fisheries Office designated and publicly announced the port facilities of this case (○○ YU power plant facilities, sea lanes and anchorages which are mooring facilities, stone finspins, water mats, water walspons) as port facilities outside the Incheon Port Area, and the defendant has collected the fees under the notice of this case and the provisions of this case. ② The Minister of Oceans and Fisheries notified the plaintiff on July 13, 200 (including the main number) as follows: the Incheon Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime Maritime.>.

C. According to the above facts, the disposition of this case is to correct the matters imposed and collected differently from the relevant Acts and subordinate statutes, the notice of this case, and the provisions of this case in the previous policy consideration, and to impose and collect fees calculated accordingly. It does not constitute a case where the defendant, which was reported to the Minister of Oceans and Fisheries and changed the regulations of this case itself, concerning the rate and method of collection of fees, which are the matters concerning the "rate and method of collection of fees" reported to the Minister of Oceans and Fisheries. Thus, even in such a case, it cannot be deemed that the plaintiff must undergo the procedures for deliberation and resolution by the Port Committee. Thus, there is no procedural error in the disposition of this case.

5. Whether the instant disposition is substantive and lawful

(a) Relevant statutes;

It is as shown in the attached Form.

B. Grounds and effects of the instant disposition

1) Details of relevant statutes, etc.

The term "harbor facilities" refers to basic facilities, functional facilities, support facilities, port-friendly water facilities, harbor hinterlands, and harbor hinterlands. Among them, the basic facilities include ① sea routes, anchorages, ship wharfs, and ship wharfs, ② external facilities, such as breakwaters, radioactive agents, tide embankments, embankments, mooringss, lockings, lock gatess, and bank bills, ③ port traffic facilities, such as roads, bridges, railroads, tracks, tracks, canals, ④ port traffic facilities, such as inside walls, water bridges, floatings, protons, protrudings, fences, fences, etc. within a harbor zone. The basic facilities, functional facilities, support facilities, harbor-friendly facilities, etc. within a harbor zone shall be harbor facilities prescribed and publicly notified by the Harbor Act only for those designated and publicly notified by the Minister of Oceans and Fisheries (Article 2 subparagraph 5 of the Harbor Act).

A person who intends to use a harbor facility (excluding navigational aids) may use the harbor facility with permission from the Minister of Oceans and Fisheries, or with permission from the Minister of Oceans and Fisheries or a person entrusted or entrusted by the Minister of Oceans and Fisheries with the operation of the harbor facility (hereinafter referred to as "operator of the harbor facility") or with permission from a person who has entered into a lease contract (hereinafter referred to as "lease contractor") or from a person who has entered into the relevant lease contract (hereinafter referred to as "lease contractor") (Article 30 (1) of the Harbor Act). The Minister of Oceans and Fisheries, a harbor facility operator, or a lessee may collect user fees from persons who use the harbor facilities pursuant to Article 30 (1) of the Harbor Act (Article 30 (4) of the Harbor Act),

Meanwhile, according to the Port Authority Act, the Port Authority established by each port of trade, to perform the construction of, remodelling, maintenance, repair, dredging, etc. of harbor facilities, and the management and operation of the port, including the expenses, security, cargo management, passenger terminal, etc. of the port, and the area under the jurisdiction of the Corporation is harbor facilities, etc. other than the harbor zone under the Harbor Act and the harbor zone prescribed by Presidential Decree (Articles 4(2) and (3), and 8(1)1 of the Port Authority Act). The term “harbor facilities, etc., other than the harbor zone prescribed by Presidential Decree” includes water zone facilities and mooring facilities among the basic facilities designated and publicly notified by the Minister of Oceans and Fisheries for each construction (Article 2 subparag. 1 of the Enforcement Decree of the Port Authority Act). In such cases, the Corporation may collect user fees or rents from persons who intend to use or rent the harbor facilities managed by the Corporation, and the type of usage fees or rents that the Corporation may collect shall be prescribed by Presidential Decree (Article 30(1) of the Port Authority Act).

2) The notice of this case and the validity of the provision of this case

The instant public notice provides for necessary matters concerning the use of harbor facilities and usage fees pursuant to the delegation of Article 30 of the Harbor Act and Articles 26 through 28 of the Enforcement Decree of the same Act. The instant provision provides for necessary matters concerning the use of harbor facilities and usage fees under the jurisdiction of trade ports including Incheon Port pursuant to Articles 4(3), 30(3), and 12(1) and 12(2) of the Enforcement Rule of the Port Authority Act (see, e.g., the instant public notice and the instant provision). In such a case, Article 30(1) of the Port Authority Act delegates the types of usage fees to be determined by the Presidential Decree, but the rates by type of usage fees to be determined by the Port Authority shall be directly determined and publicly announced by the Minister of Oceans and Fisheries pursuant to Article 30(3) of the Enforcement Decree of the Port Authority Act, which does not have any specific authority within the scope of the instant law, including the instant public notice and public notice of the usage fees, but not with any specific authority delegated by the Ministry of Land, Transport and Maritime Affairs and Fisheries.

3) Direct ground for the instant disposition

In full view of the contents of the relevant statutes, the instant notice, and the interpretation of the provisions of this case, it is reasonable to deem that, in the event that a harbor authority is established and manages a harbor facility under the jurisdiction of a certain trade port, the provisions that enable the harbor authority to collect user fees from those who intend to use the harbor facility are stipulated under Article 30 of the Port Authority Act. On the other hand, if no harbor authority has jurisdiction over any harbor facility, the Minister of Oceans and Fisheries may collect user fees from those who intend to use the harbor facility based on Article 30 of the Harbor Act. As seen earlier, the instant disposition is clearly based on the Defendant’s use of the harbor facility outside the Incheon Port Area against the Plaintiff, which is a harbor facility outside the Incheon Port Area, and thus, the instant provision, which is not the public notice of this case, becomes the direct basis for the instant disposition (the Defendant also claims to the same effect as

Meanwhile, the instant provision stipulates harbor facilities subject to the collection of cargo entry and departure fees as “water zone facilities”, “port traffic facilities”, and “cargo storage facilities”. The following is examined by changing the instant provision, which considers that the sea route, anchorage, etc., which is the water zone facilities of the Incheon port, is not a ship but a ship, and imposes the cargo entry and departure fees as it is deemed that the cargo was used.

(4) Summary of Supreme Court en banc Decision 78Nu407 Decided August 26, 1980

A) The summary of the majority opinion of the Supreme Court en banc Decision 78Nu407 Decided August 26, 1980 (hereinafter “electric power resource agreement”) is as follows.

In principle, the vessel's charges for the entry into and departure from port facilities were imposed on the vessel's 197.5. The vessel's charges for the entry into and departure from port facilities are now imposed on the vessel's 6th vessel's 19. The vessel's 2nd vessel's 1st vessel's 6th vessel's 2nd vessel's 6th vessel's 1st vessel's 6th vessel's 6th vessel 2nd vessel's 6th vessel 2nd vessel's 6th vessel 197. The vessel's 2nd vessel 5th vessel 2nd vessel 5th vessel 197. The vessel's 1st vessel 6th vessel 2nd vessel 6th vessel 2nd vessel 2nd vessel 5th vessel 197. The vessel 2nd vessel 5th vessel 2nd vessel 6th vessel 2nd vessel 197. The vessel 1st vessel 6th vessel 2nd vessel 2nd vessel 196th vessel.

B) As above, the majority opinion of the en banc decision held that the main function of the harbor is “the ship safely enters and anchors in the harbor,” and “the loading and unloading of the cargo within the harbor” is “the ship owner in the case of the former, and the ship owner in the case of the latter, in accordance with the principle of the beneficiary’s burden on the cost of installing the harbor, to bear the cost of loading and unloading the ship, and to bear the cost of loading and unloading the cargo only to the ship owner loaded and unloaded in reality, respectively, on the premise that the purpose of legislation of the Harbor Act is the port of Ulsan, that the plaintiff is the port facility in the port of Ulsan, that is, the port facility in the port in the port in the port in the port in the case of the latter, and that even if the cargo is physically loaded and unloaded through

C) According to the purport of the en banc Decision, if a vessel uses a water-based facility, such as a sea route designated and publicly notified as a harbor facility outside a harbor zone, the vessel’s loaded cargo is deemed to have used a sea route, so that the vessel may also impose a charge for the entry and departure of cargo, which is a kind of charge for the use of a harbor facility, on the owner of the vessel. In other words, if a vessel uses a certain harbor route, it is possible to interpret that a charge for the entry and departure of cargo is imposed even if the vessel gets loaded and unloaded using other harbor facilities

5) Justifiable interpretation of the grounds for the imposition of cargo entry and departure charges

However, it is reasonable to view that the fee for the use of harbor facilities, which is the fee for the use of harbor facilities, should be imposed only on the use of harbor facilities that load and load cargo. If so, the purport of the en banc Decision, i.e., the position that the fee for the use of harbor facilities is included in the facility subject to collection of the fee for the transport of cargo, is no longer reasonable, and furthermore, the part that included the facility in the facility subject to collection of the fee for the transport of cargo, among the criteria for calculating the rate of the provision of this case as stated in the purport of the same,

○ The Harbor Act and the Port Authority prescribe that a fee may be imposed on both the “use” of port facilities. However, the language meaning of “use” is defined as “contributing to a certain purpose or function.” Although the Harbor Act does not have any definition in itself with respect to “air route” falling under water-based facilities, according to Article 2 Subparag. 11 of the Act on the Arrival, Departure, etc. of Ships, the term “air route” refers to a waterway designated and publicly notified pursuant to Article 10 of the same Act to be used as a passage to a ship’s entry and departure. Thus, the use of a sea route refers to the use of a ship’s own passage as a passage to the ship. It cannot be deemed that the ultimate purpose of the use of a sea route is not a ship, but a cargo is using a sea route. Likewise, according to Article 2 Subparag. 7 of the same Act, the term “stop” means a place where a ship can anchor, and thus, the use of a ship’s anchorage itself can also be seen as using a ship’s own anchorage.

○ The term “harbor” under Article 2 subparag. 1 of the Harbor Act refers to a place where facilities for the entry and departure of vessels, the embarkation and disembarkation of passengers, the loading and unloading of cargo, the loading, unloading, storage, and disposal of cargo, and the assembly, processing, packing, and manufacturing of cargo, and other facilities for creating added value. Furthermore, the term “harbor facilities” under Article 2 subparag. 5 of the Harbor Act refers to various facilities, such as water zone facilities, port traffic facilities, mooring facilities, landing facilities, unloading facilities, passenger facilities, cargo distribution facilities, ship distribution facilities, and marine-friendly water facilities in response to the aforementioned comprehensive function of the harbor. However, the usage fees imposed on a person who uses or uses such harbor facilities are set at the rate corresponding to the functions and scale of the harbor used and are not imposed on the harbor facilities that he/she has not used. Article 26(1) of the Enforcement Decree of the Harbor Act provides for the purpose of the use of harbor facilities by a person who intends to use the harbor facilities, the location, name, size, etc. of the harbor facilities to be prepared, and the size thereof.

Of these usage fees, cargo entry and departure charges are charges imposed on the basis of harbor facilities used in the entry and departure of cargo. However, in principle, the usage fees of State property under Article 32 of the State Property Act and Article 29 of the Enforcement Decree of the same Act are imposed on a third party who entered into a contractual relationship with the third party, such as the lessee, etc., for example, on the basis of the State property subject to use as a matter of principle, and do not impose on the third party who entered into a contractual relationship with the third party. This is the same as in the case of the imposition of usage fees by other statutes.

However, as a matter of principle, the Port Authority and Port Authority shall impose a fee directly on the user of the port facilities, and exceptionally provide that a person who has entered into a lease contract with a person entrusted with the operation of the port facilities may impose a fee on the user of the port facilities with the consent of the lessee, and the Port Authority does not have an exception provision that the person is in a relationship of receiving cargo from the owner of the ship who is the user of the water facilities, but does not directly use the water facilities. Thus, in principle, it is reasonable to interpret that the fee for the use of the water facilities can be imposed only on the owner of the ship using the water area facility function of the harbor facilities.

As pointed out in the majority opinion of the en banc decision above, the former Harbor Act (amended by Act No. 4358 of March 8, 191) imposes on the owner of a ship the cost of entering a port depending on the function of the harbor where the vessel safely enters a port and anchors in the port, and the cost of loading and unloading the cargo in the port. The above majority opinion sets the principle of the beneficiary’s liability for the cost of installing the port facilities. However, cargo is used only through the process of loading and unloading at a wharf, and thus, it is subject to the cost of using the harbor facilities related to the volume and volume of the cargo. In other words, the imposition of the cost of loading and unloading depending on whether the cargo was loaded on a ship without using the port facilities related to loading and unloading is not consistent with the relation between profits and bearing the cost of loading and unloading. When following the majority opinion of the en banc decision above, the State as well as the person who leased the State property and the person who used the State property can impose the fee in duplicate.

According to the instant provisions, sea routes and the captain of a ship in a water zone are stipulated as the subject of the collection of vessel entry and departure fees, and despite the provisions as the subject of the collection of anchorage fees, the term “water zone facilities” in addition to port traffic facilities and cargo storage facilities are overlapping as the subject of the collection of vessel entry and departure fees.

① As seen earlier, a person using a sea route or anchorage is not the owner of the ship; ② the Defendant may impose and collect the vessel entrance and departure charges and anchorage charges on and from the owner of the ship using the sea route or anchorage; ③ the port navigational transport facilities and cargo storage units subject to the collection of the vessel entrance and departure charges; ④ the cargo loaded on a ship also indirectly uses the water zone facilities; and ④ the cargo loaded on a ship should be deemed subject to the imposition of the usage charges; thus, it can be deemed that the aforementioned provision is subject to the imposition of the vessel charges. In light of the fact that Article 28 of the Enforcement Decree of the Harbor Act, Article 13 of the Enforcement Decree of the Port Authority Act, and Article 18 of the Enforcement Decree of the Port Authority Act, provide for the overlapping of the vessel charges and the cargo charges to the owner of the ship using the sea route or anchorage, etc., are also subject to the imposition of the vessel charges and the cargo charges without any particular grounds, while imposing the vessel charges for the use of the harbor facilities.

It is not impossible to interpret that ○○ cargo indirectly uses a sea route through a ship. However, according to the provisions of this case, the rate of the entrance and departure fee for a ship is 133 won per ton, and the tonnage is subject to international gross tonnage calculated in accordance with the International Convention on Measurement of Gross Tonnage in 1969. International gross tonnage is calculated based on the value calculated by subtracting the total volume of the excluded places from the total volume of the closed place in accordance with Article 3 of the Ship Act and Article 9 of the Rules on Measurement of Tonnage. Here, the term “closed place” refers to all places inside a ship which is closed by outer board, partition, wall, deck or cover (excluding a tent), and the term “cargo loading place” refers to a place inside the closed place used for cargo transport, and therefore the loading place is reflected in the international gross tonnage, which is the basis for calculating the rate of the entrance and departure fee for a ship. In other words, even if a cargo is indirectly used, it is sufficient to view that the ship has already been used in the domestic sea route including the loading and departure fee.

Article 1(1) of the Tonnage Tax Act (amended by Act No. 2874, Dec. 31, 1975; hereinafter “Tonnage Tax Act”) which was applied before the former Harbor Act of 1975 entered an open port, provides that “if a ship traveling from a foreign country for foreign trade enters an open port, 30 tons per ton of net tonnage shall be imposed at each time of entry into an open port, 30 tons per ton of net tonnage” (Article 15(3) of the former Harbor Act (amended by Act No. 2758, Apr. 4, 1975) provides that user fees may be collected from a person who uses or uses the port facilities, separate from the above port facilities, the management authority may collect charges from the person who uses or uses the port facilities, and also collect charges from the person who uses or uses the port facilities pursuant to the provisions of Article 15(3) of the same Act.

However, as stated in the majority opinion of the en banc Decision, the Republic of Korea requires an increase in the rate of the use of harbor facilities when entering into an IBR loan agreement with 1973. Accordingly, on April 16, 1974, the Ministry of Construction and Transportation began to collect cargo entry fee under 26 of the Ministry of Transport and Maritime Affairs, which was amended by Act No. 2758 of April 4, 1975, and Article 2(3) of the former Harbor Act (amended by Act No. 2874 of December 31, 1975; hereinafter “the former Harbor Act”) was amended by Act No. 2874 of December 31, 1975, and the same term “cargo entry fee” means the fee for the use of the same harbor facilities, which is 3 years after the date of entry into the port area and port area, and the same shall not apply to the fees for the use of the same from the managing authority for the use of the harbor facilities.

In light of the above amendment history, the concept of “cargo entry fee” itself was introduced for the implementation of the IBR loan agreement, and it seems clear that the object of the collection is “cargo” and the remainder of the concept is unclear. In addition, while the Harbor Act (No. 2874) stipulates “entry fee” as a kind of fee, in light of its name and form of provision, it appears that the term “ship entering port” and “ship entering port” are subject to collection, and that it has the nature of money imposed on the comprehensive use of harbor facilities accordingly. Furthermore, the Harbor Act (No. 2874) enacted on January 31, 1976, which was enacted on January 31, 1976, had a port facility fee collected on the basis of the fact that it was established on May 1, 1975, which is similar to the port facility tax imposition system and the fact that it was imposed on the ship and the cargo charge collected by the management agency on the basis of the fact that the harbor facility fee was collected on the basis of entry.

In order to gather circumstances that can be inferred from the amendment history of the Harbor Act, the freight entry fee prescribed by the Harbor Act No. 2874 is not the cost of specific use of the harbor facilities, but the nature of money that is imposed for the entry into port and the comprehensive use of the harbor facilities accordingly. The majority opinion of the en banc Decision appears to be subject to the charge of cargo entry fee, focusing on the fact that the cargo was used as a harbor facility. This position also appears to reflect the characteristics of the freight entry fee prescribed by the Harbor Act No. 2874. 2874.

However, each of the current Harbor Act and Port Authority’s respective laws and regulations does not impose a separate entry fee. Rather, it is not clear that the respective rates vary depending on the function and scale of port facilities used by dividing vessel fees, freight charges, etc. under the relevant Acts and subordinate statutes. Although it is not clear whether the current Harbor Act and Port Authority did not adopt the concept of the entry fee under the former Act and the former Act overlaps with the usage fee of port facilities, it is difficult to maintain the concept of comprehensively using port facilities under the current laws and regulations that integrated the cost for the use of port facilities with the cost for the use of port facilities. Since the instant provisions are stipulated under the premise that cargo is used by any method in which port facilities are used, the validity of the instant provisions is low in light of the history of the amendment of the Harbor Act.

6) Sub-decisions

Therefore, it is reasonable to view that the fee for the entry into and departure from port facilities, which is the fee for the use of the harbor facilities, should be imposed only when the harbor facilities are used to load and load the cargo, and therefore, it is judged that the portion including the water area facilities, among the standards for calculating the rate of the provision of this case, is illegal and invalid by deviating from the delegation range

(c) Fact of recognition;

1) As of August 28, 2003, the chief of the Incheon Regional Maritime Affairs and Fisheries Office notified the fact that the Plaintiff was designated and publicly notified as harbor facilities outside the harbor area with respect to the port facilities installed for the operation of the ○○ ○○ Power Power Plant, and the anchorage and route leading to the ○○ Power Power Station on the west Port Route, and requested the said harbor facilities to pay the permission and the fee for the use of the port facilities when ships and cargoes enter or depart from the port by the instant public notice.

2) On May 23, 2008, the head of Incheon Regional Maritime Affairs and Fisheries Office (the Incheon Regional Maritime Affairs and Fisheries Office changed the name to the Incheon Regional Maritime Affairs and Fisheries Office due to the organizational restructuring on February 2008, and the name was changed to the Incheon Regional Maritime Affairs and Fisheries Office on January 23, 2015) additionally designated and announced the Plaintiff’s request for the additional designation and announcement of port facilities for ○○ 3 and 4 nuclear power as port facilities outside the boundaries of Incheon Port, and related matters were requested to consult with the Defendant.

3) In order to enter into the instant harbor facilities, the “heading port Incheon Port,” and the “heading port anchorage” are designated and publicly notified by the Incheon Regional Maritime Port Authority as port facilities outside the Incheon Port Port Area. The vessel entering the instant harbor facilities via the Dong-do Waterworks, which enters the port of Incheon Port, re-loading and unloading the freight from the instant harbor facilities through the Dong-do Waterworks, and then going back to the port immediately before the entry into the port of Incheon.

4) On August 16, 2011, the Minister of Land, Transport and Maritime Affairs designated and publicly announced harbor facilities under the jurisdiction of the port under Article 4(3) of the Port Authority Act and Article 2 of the Enforcement Decree of the same Act (No. 2011-461 of the Ministry of Land, Transport and Maritime Affairs Notice), and designated and publicly announced the instant harbor facilities (No. 201-461 of the Ministry of Land, Transport and Maritime Affairs) as harbor facilities outside the jurisdiction of the Defendant as harbor facilities outside the water zone facilities and mooring facilities, which are the water zone facilities and mooring facilities. In addition, the head of the Incheon Regional Maritime Affairs and Port Office designated and publicly announced the Defendant to manage and operate the Incheon Port and collect the user fees from the Defendant on April 3, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3, 5, 6, Eul evidence Nos. 2 through 4, 6, 14 (including branch numbers), the purport of the whole pleadings

D. Determination

1) As to the allegation that the Defendant cannot impose and collect usage fees for the instant harbor facilities owned by the Plaintiff since it was directly used by the Plaintiff.

However, there is no dispute that the mooring facilities of the instant port are installed by the Plaintiff among the port facilities. However, according to the instant provisions, the freight entry and departure fees in question are imposed on the “water zone facilities”, “port traffic facilities”, and “cargo storage facilities”. Among the instant port facilities, the freight entry and departure charges are imposed on the “cargo storage facilities”. Since the instant port facilities designated and publicly notified as port facilities outside the Incheon port area are water zone facilities, mooring facilities, and navigational aids, the said freight entry and departure charges are ultimately imposed on the water zone facilities in the instant port facilities. However, the said freight entry and departure charges are bound to be imposed on the water zone facilities in the instant port facilities. However, the sea route and anchorage, which are the water zone facilities, refers to the water surface itself, and cannot be said to have the Plaintiff’s ownership. Accordingly, the Plaintiff’s assertion that

2) As to the assertion that the Defendant cannot be deemed to have managed harbor facilities in the jurisdiction thereof

In full view of the following circumstances, it is reasonable to view that the Defendant is in charge of the management of the water area of the instant harbor facilities designated as harbor facilities outside the harbor zone of Incheon port, by taking into account the facts acknowledged earlier, as well as the descriptions of the evidence Nos. 13 and 15 (including each number). The other Plaintiff’s assertion on this premise is without merit.

① According to the Port Authority Act, the port authority’s jurisdiction is a harbor facility, etc. other than the harbor zone under the Harbor Act and the harbor zone prescribed by Presidential Decree (Article 4(3) of the Port Authority Act). Here, “harbor facilities, etc. other than the harbor zone prescribed by Presidential Decree” includes harbor facilities outside the harbor zone and facilities outside the harbor zone designated and publicly notified by the Minister of Oceans and Fisheries by the Corporation (Article 2 subparag. 1 of the Enforcement Decree of the Port Authority Act). The Minister of Land, Transport and Maritime Affairs, on August 16, 2011, designated and publicly notified harbor facilities subject to the jurisdiction of the Port Authority pursuant to the above Enforcement Decree (Article 30(4) of the Harbor Act, Article 2 subparag. 1 of the Enforcement Decree of the Port Authority Act, and Article 30(2) of the same Act and Article 30(2)4 of the Enforcement Decree of the Port Authority Act and Article 30(2) of the same Act are not applicable to the harbor facilities under the jurisdiction of the Defendant.

(2) According to Article 4 (2) and (3) of the Port Authority Act, the Port Authority shall take charge of the affairs concerning the development, management, and operation of harbor facilities and shall affect trade ports and port facilities prescribed by Presidential Decree, and thus, the jurisdiction of the Port Authority may be deemed to mean the jurisdiction of the Port Authority over the development, management, and operation of port facilities, which is general and abstract.

③ On April 3, 2014, immediately before the date of the instant disposition, the Defendant leased the right to manage and operate the facilities within and outside the Incheon Coast Guard’s port area without compensation to manage and operate the facilities of Incheon Coast Guard and collect the user fee.

④ On June 1, 2007, the Defendant was transferred to the chief of the Incheon Regional Maritime Affairs and Fisheries Office for the maintenance and management of water facilities, such as removal, maintenance and dredging of abandoned ships and sunken objects, and thus, the Defendant is in charge of the maintenance and management of harbor facilities within his/her jurisdiction.

3) As to the assertion that the Defendant imposed the cargo entry and departure fee on the ground that the cargo was used for the water area facilities although it cannot be deemed that the cargo was used for the water area of Incheon Port.

In full view of the aforementioned facts and the interpretation of the relevant Acts and subordinate statutes, it is recognized that the Defendant is authorized to impose user fees on the user of the facility since the funeral anchorage and arrival route of Incheon port are port facilities outside the harbor area of Incheon port, and that the water surface facilities and mooring facilities of the instant port facilities have been designated and publicly announced as port facilities outside the harbor area of Incheon port. However, according to the instant provisions (excluding the part that is deemed invalid above), cargo entry charges should be imposed only when the cargo is loaded and loaded using the “port traffic facilities” and the “cargo storage facilities in the cargo storage and treatment facilities,” and the water area facilities should be excluded from those subject to imposition. However, there is no evidence to acknowledge that the Plaintiff used the cargo storage facilities other than the water area, namely, port traffic facilities designated and publicly notified as port facilities outside the harbor area of Incheon, and cargo storage facilities. Therefore, this part of the Plaintiff’s assertion has merit.

E. Sub-committee

If so, the disposition of this case is unlawful because there is no legal basis, so it should be revoked without examining the remaining arguments of the plaintiff.

6. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted for the reasons, and the judgment of the court of first instance which dismissed the plaintiff's claim of this part shall be inappropriate for the conclusion different from this conclusion. Accordingly, the court of first instance which accepted the plaintiff's appeal, and decided to revoke the part against the plaintiff in the judgment of the court of first instance as to

[Attachment]

Judges Kim Heung-ung (Presiding Justice)

1) However, on March 31, 2014, the notice of this case is based on the Defendant’s notification of change in the rates of port facility usage fees at the time of notifying the Plaintiff of change in the rates (see evidence 1). However, as seen in the following 5-B(3), the direct ground of the disposition of this case can be a procedural issue that is not the notice of this case but the provision of this case. However, Article 23(1) of the Administrative Procedures Act provides that “an administrative agency shall present the basis and reason to the party when rendering the disposition.” In general, where the party presented reasons to the extent that the applicant’s rejection of authorization, permission, etc. is able to know the grounds, it cannot be said that the disposition is unlawful (see Supreme Court Decision 200Du8912, May 17, 2002). However, even if the provision of this case is not presented based on the same procedural error as the notice of this case, it is difficult to deem that the provision of this case was presented based on the same procedural error.