2012Guhap5183 Revocation of an order to refund a compensation for loss

1. A modern merchant ship company;

2. Hanjin Shipping Co., Ltd.

3. SDR Shipping Corporation;

Korea

October 9, 2012

December 10, 2012

1. As to the Defendant:

A. The Plaintiff Hyundai Merchant Shipping Co., Ltd. is KRW 1,083,684,00, and KRW 1,052,832,00 for the Plaintiff Hanjin Shipping Co., Ltd., and KRW 824,886,00 for the Plaintiff Hanjin Shipping Co., Ltd..., Ltd., confirm that there was no obligation to refund each amount of compensation for loss.

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

The same shall apply to the order.

1. Basic facts

A. The Plaintiffs are operating LNG vessels, as companies running maritime transportation business. The Plaintiffs are operating LNG vessels.

B. Pursuant to Article 8(1) of the International Ship Registration Act between 2006 and 2010, the Minister of Land, Transport and Maritime Affairs designated LNG vessels, such as attached Table 1 (hereinafter “instant vessels”) as “national essential international vessels” under Article 2 subparag. 4 of the same Act, and paid compensation for losses (hereinafter “instant compensation”) to the Plaintiffs pursuant to Article 8(4) of the same Act. The Board of Audit and Inspection conducted an audit on the Ministry of Land, Transport and Maritime Affairs from March 14, 201 to March 29, 201 (hereinafter “the instant audit”). On September 7, 2011, the Minister of Land, Transport and Maritime Affairs notified the Plaintiffs that the instant disposition to pay the instant compensation for losses was unlawful, and thus, he/she prepared a plan to issue a recall order, etc.

D. Accordingly, on November 15, 201, the Minister of Land, Transport and Maritime Affairs issued an order to return the instant compensation for losses already paid to the Plaintiffs on the ground that no loss was inflicted on the Plaintiffs due to the designation of national essential international ships (hereinafter “instant order to return”) on the ground that all Korean seafarers, who are the owner of the instant ship, are on board the ship under a contract between the Korea Gas Corporation and the Plaintiffs, which are the owner of the instant ship. [Grounds for recognition] The fact that there is no dispute over the instant order to return the compensation for losses already paid to the Plaintiffs, and the purport of the entire arguments and arguments, as stated in

2. Whether the lawsuit of this case is lawful

Article 8(4) of the International Ship Registration Act provides that "the Minister of Land, Transport and Maritime Affairs may restrict the boarding of a foreign seafarer in an essential international vessel designated under paragraph (1). In such cases, the Minister of Land, Transport and Maritime Affairs shall compensate the owner of a ship, etc. for losses incurred by the owner of a ship, etc. by restricting the boarding of a foreign seafarer." The right to claim compensation for losses under the above provision is stipulated in order for the State to compensate for losses incurred by the designation of an essential international ship to the extent of the size of the foreign seafarer's boarding, and the legal nature of the right is reasonable (see, e.g., Supreme Court Decision 204Da6207, May 18, 2006). However, the International Ship Registration Act only provides the compensation provisions as above, and does not provide for the procedure for protesting against the decision of compensation, the refund and collection procedure of erroneously paid compensation, and accordingly, even if the Minister of Land, Transport and Maritime Affairs seeks the refund of compensation payment, such as an order of refund.

ex officio, the special system of public law, which provides for the recovery of special sacrifice caused by lawful infringement of property rights, is a system of compensation for losses, and the right to claim compensation for losses is against the public authority of an individual. Thus, in a case where an administrative agency claims the return of compensation for losses already paid, the lawsuit seeking confirmation of the absence of the obligation to return the compensation for losses should be governed by the public law. Accordingly, the lawsuit of this case seeking confirmation of the absence of the obligation to return the compensation for losses of this case against the defendant is legitimate.

3. Determination on the claim of this case

A. The allegations and issues of the parties

1) The plaintiffs' assertion

The number of foreign crew members on board is operated as a quota system for each ship. The compensation for losses of the plaintiffs due to the designation of the ship of this case as a national essential international ship is reasonable as compensation for losses caused by the reduction of the total number of foreign crew members on board. Thus, there is no obligation to refund the compensation for losses of this case to the defendant of this case.

2) The defendant's assertion

Article 8 (4) of the International Ship Registration Act does not intend to compensate for losses caused by the reduction of the total number of personnel, but it is prescribed in the purport of compensating for the increase of wages actually incurred on the ship.

3) Issues

Ultimately, the issues of the instant case are whether the criteria for compensation for losses under Article 8(4) of the International Ship Registration Act can be deemed as the total number of ship companies, or whether it can be deemed as the actual status of foreign seafarers’ boarding by ship, and whether the Plaintiffs actually suffered losses.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

(c) Fact of recognition;

1) The main contents of the international ship collective agreement concluded on the basis of Article 6(1) of the International Ship Registration Act (hereinafter “collective agreement”) and the labor-management agreement signed on December 28, 2007 to maintain employment stability and adequate scale of Korean seafarers (hereinafter “labor-management agreement”) are as follows.

[International Ship Collective Agreement]

Article 3 (Boarding of Foreign Seafarers)

1. The scope of employment of seafarers subject to this Convention shall be governed by the agreement separately determined by the Labor Cooperatives and the Association: Provided, That in the absence of any agreement determined by the Labor Cooperatives and the Association, the scope of employment of foreign seafarers for the ships of nationality shall be governed by the agreement. A company may implement a labor-management agreement for each ship of which the number of seafarers may be adjusted within the scope of total number of employees for each ship calculated by multiplying the scope of employment of foreign seafarers per ship and the number of international ships of the relevant company under paragraph (1) by the number of employees for each international ship.

Article 2 (Securing Essential Ships and Introduction of Designated Ships System)

1. International ships shall be classified into essential international ships (hereinafter referred to as "essential ships"), designated international ships (hereinafter referred to as "designated ships") and general international ships (hereinafter referred to as "general ships") and managed by the State. The scale of boarding of foreign seafarers prescribed in Article 3;

1. The number of foreign crew members on board an essential vessel shall not exceed six per vessel as prescribed by the International Ship Registration Act and subordinate statutes;

2. The number of foreign seafarers on board a designated ship shall not exceed eight assistant seafarers per ship with the fixed number system for each ship company, and one marine officer and seven assistant seafarers may be operated under a unit labor-management agreement according to the conditions of selection of ships or by ship;

3.The number of foreign crew members on board a general vessel shall be as follows and may be implemented by the prescribed number system for each ship:

- From January 1, 2008: Two foreign marine officers, eight assistant officers, and eight assistant officers;

- From January 1, 2009: to discuss and determine between 2008

From January 1, 2010: as a condition precedent, Articles 1 and 2 above provide for employment of foreign seafarers, except for vessel and head of agency, on board a vessel or head of agency.

2) Based on the contents of the above collective agreement and the labor-management agreement, the details of the designated vessel operation plan prepared by the Korea Shipowners Association on January 14, 2008 are as follows.

Operation of the fixed number (T/O) system for foreign crew members;

○ Designated Ships: the sum of the number of foreign crew members permitted to board a designated vessel(8) and an essential vessel(6) shall be operated as T/O in total: Provided, That an essential vessel may be on board only up to six vice members.

○ General vessel: Operation as a total T/O of the number of foreign crew members permitted to board an international vessel which is not a designated vessel among the affiliated vessels and an essential vessel;

* Management by classifying designated vessels into T/O

3) The annual total number of foreign seafarers and actual employment status of the Plaintiffs are as follows.

A person shall be appointed.

4) The Korea Gas Corporation paid compensation to the Plaintiffs under the LNG exclusive shipping transport contract concluded with the Plaintiffs. Based on the above foreign seafarer employment status, the Plaintiffs filed a claim for compensation for losses with the Minister of Land, Transport and Maritime Affairs, along with calculation documents on calculation of the difference of wages by ship (the average wages of both inside crew and foreign crew members in the instant vessel are prepared in the same manner regardless of their class). The Minister of Land, Transport and Maritime Affairs calculated losses on the basis of eight persons on board of foreign crew as stipulated in Article 3(2) of the labor-management agreement and paid compensation for the instant compensation to the Plaintiffs.

5) Details of the plan for the designation of international vessels essential to the State prepared by the Minister of Land, Transport and Maritime Affairs in 2011 are

Compensation for losses for international vessels essential to the State on terms and conditions;

○ (Standards for Compensation for Loss) Compensation for loss of wages of foreign seafarers on board designated international ships and essential ships, as well as compensation for loss of personnel expenses incurred by employment of Korean seafarers on behalf of foreign seafarers pursuant to *

* The number of foreign seafarers: designated international ships (one officer, seven assistant officers), and the Minister of Land, Transport and Maritime Affairs (six assistant officers), at the time of the instant audit and inspection, answer to the purport that "the designated ship operating under the current labor-management agreement is operating a foreign seafarer as the total number of ship crew members (T/O)."

7) On the other hand, the Minister of Land, Transport and Maritime Affairs has not prepared the standards and scope of work on board of foreign seafarers of international ships under Article 5(2) of the International Ship Registration Act.

[Ground of recognition] Facts without dispute, Gap evidence 2, 7 through 18, Eul evidence 2, the purport of the whole pleadings

D. Determination

1) Criteria for compensation for losses

In full view of the contents of the relevant statutes and the purport of the entire argument as seen earlier, it is reasonable to view the compensation system under Article 8(4) of the International Ship Registration Act to compensate for the difference between the wages of the Korean seafarers with respect to the decreased number of foreign seafarers where an essential international ship is designated among the designated international ships based on the total number of ship owners, in full view of the following circumstances.

A) Article 8(4) of the International Ship Registration Act provides that "ship owners, etc. shall compensate for losses," and Article 7(1) of the Enforcement Decree of the International Ship Registration Act provides that the compensation for losses shall be paid to the number of seafarers less than six from the standard of work on board of foreign seafarers under Article 5(2) of the International Ship Registration Act and the number of seafarers determined within the scope of the standard of work on board of foreign seafarers under Article 5(2) of the International Ship Registration Act. As seen earlier, the Minister of Land, Transport and Maritime Affairs did not set the standard under Article 5(2) of the International Ship Registration Act and the contents of the collective agreement and the labor-management agreement have been recognized as the standard

C) Under the collective agreement and the labor-management agreement concluded in accordance with the authority granted by the International Ship Registration Act to the seafarer trade union organization and the shipowner's association, the International Ship Registration Act provides for the implementation of the total quota system for the scope of employment of international ship crew members (hereinafter referred to as "T/O system").

D) Article 3(2) of the labor-management agreement, which the Minister of Land, Transport and Maritime Affairs takes as the basis for the payment of compensation for losses, is also related to the size of the foreign crew of the designated international ship, but is premised on the system

E) Article 3(1) of the labor-management agreement provides that "not more than six members per unit" in the case of essential ships, but in fact, the fixed number of international ships and designated international ships have been identified and operated as a whole.

F) In light of the fact that even if the documents for calculating the difference in wages attached when the plaintiffs claimed compensation for losses were prepared by ship, the average wage of the seafarers was prepared in the same manner regardless of the class of class, it is reasonable to view the above calculation statement as submitting the average value by type rather than calculating the amount of compensation for the individual ship. In fact, the compensation system has been made with respect to the reduction in the total number of foreign seafarers based on

2) Whether the existence of loss exists

The Minister of Land, Transport and Maritime Affairs reduced the total number of foreign crew members on board the instant vessel by designating the pertinent vessel as an essential international vessel. Accordingly, it shall be deemed that the damages equivalent to the difference between the wages of Korean crew and foreign crew members on the total number of foreign crew members reduced to the Plaintiffs have occurred.1) The Defendant asserted that the Korea Gas Corporation paid the seafarers’ fees to the Plaintiffs, and thus, the instant compensation for losses is not reasonable, but the Korea Gas Corporation’s payment of the seafarers’ fees is under a private contract with the Plaintiffs under the private law, and it cannot be interpreted that the compensation for losses caused by the designation of the national essential international vessel due to the payment of the seafarer’s fees under the said contract

3) Sub-decisions

Therefore, the compensation for losses to the ship of this case should be based on the total number of foreign crew members available to board the ship of this case, and since the plaintiffs actually suffered losses, the ground for the order to return of this case is without merit.

4. Conclusion

Therefore, there is no obligation of the plaintiffs to return the compensation for losses against the defendant, and as long as the defendant asserts the legitimacy of the order of return of this case and contests the existence of the above obligation of return, there is a benefit to seek confirmation of the absence of the above obligation of return. Thus, the plaintiffs' claim of this case is justified, and it is so decided as per Disposition.

Number of judges of the presiding judge;

Judges Jeong Jae-hee

Judges Yang Jae-chul

1) For instance, 128 persons (i.e., 16 ships x 8) if the Plaintiff Hyundai Ship Company operated only 16 international ships designated in 2008.

Foreign seafarers could have been employed, but only ten of the above ships was designated as a national essential international ship, and a foreign seafarer was designated as a foreign ship.

The total number of 20 persons (10 persons x 2) decreased and 108 foreign seafarers have no choice but to employ them.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.