(영문) 대구지방법원 2020.7.23.선고 2019구합24420 판결

1. From August 28, 2015, the Plaintiff confirmed that he/she has the right to use the said B Area Facilities (e.g., port lines, stuffs, and lines lines) free of charge until KRW 81,780,39,000, in excess of KRW 77,368,89,000.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. On April 2, 2010, the Administrator of the Regional Maritime Affairs and Fisheries Office under the Defendant (hereinafter referred to as the “Administrator of the Regional Maritime Affairs and Fisheries Office”) published a plan for designating a non-management authority-managing authority-managing authority-managing authority-managing authority-managing a project operator with respect to dredging facilities and dredging the route (hereinafter referred to as the “construction of this case”), and on April 24, 2010, the Plaintiff was selected as the project operator.

B. On June 2010 and June 2010, the Plaintiff filed an application with the head of the Port and Fisheries Administration for permission to implement the instant project pursuant to Article 9(2) of the former Harbor Act (amended by Act No. 11594, Dec. 18, 2012; hereinafter the same shall apply). On June 22, 2010, the head of the Port and Fisheries Administration issued a permit to implement the harbor project for the instant project with respect to the Plaintiff. The Plaintiff formulated and submitted a detailed implementation plan for the instant project to the head of the Port and Fisheries Administration pursuant to Article 10(1) of the former Harbor Act. On September 8, 2010, the head of the Port and Fisheries Administration approved the implementation plan for the instant project with respect to the instant project (hereinafter referred to as the “instant implementation plan”).

D. On October 7, 2010, the Plaintiff started the instant construction, and around August 27, 2012, B’C’ (hereinafter “C”), around August 27, 2012, requested the head of the Maritime Affairs and Fisheries Office to compensate for losses and to prepare measures to prevent marine pollution, on the grounds that “B” had been spread to D coastal sea areas with concentration and malodor for the last one year prior to the construction of the instant construction.

E. On September 13, 2012, the Plaintiff submitted his/her opinion to the head of the Korea Coastal and Port Administration (hereinafter “Korea Coastal and Port Administration”) to temporarily suspend construction works to the port of ocean and port, and ② continue to hold an interview with C, and ③ endeavor to prevent the spread of similar things, such as the adjustment of the intensity of construction, etc., and the head of the Korea Coastal and Port Administration sent his/her opinion to C

F. Around September 20, 2012, the head of the Maritime Affairs and Fisheries Administration presented C measures to reduce marine pollution and to resolve fishery damage (compensation). On September 25, 2012, the head of the Maritime Affairs and Fisheries Administration requested the Plaintiff to present a plan for measures and solutions to the plan.

G. Around September 26, 2012, the head of the Maritime Affairs and Fisheries Administration requested C to cooperate in the settlement of compensation for fishery damage, and on September 27, 2012, requested the Plaintiff to devise a plan for measures and submit a plan for measures.

H. On October 5, 2012, the Plaintiff sent a reply to the head of the Maritime Affairs and Fisheries Office on October 5, 2012 that the Plaintiff would notify C of the civil petition at the time of the review.

(i) On November 21, 2012, the Administrator of the Korea Coastal and Fisheries Agency changed the project implementation period from 25 months from the date of commencement to 34.3 months from the date of commencement of the first implementation plan, and the interest rate related to the extension of the deadline for completion of the gold Council shall not be reflected in the matters due to the project operator’s obligation, and if it is related to the preservation of investment expenses in the process of civil petition consultation, he/she shall consult with the Korea Coastal and Fisheries Office in advance.

(j) On December 5, 2014, the Plaintiff entered into an agreement with the E Committee, 'F Committee', and 'G Committee' (hereinafter referred to as the "each Committee of this case") to compensate for fishery losses according to the service results and the appraisal results of the specialized investigation agency designated and publicly notified by the Government, and the Plaintiff entered into an agreement to deposit KRW 5,00,000 in H Association to secure compensation (hereinafter referred to as the "Agreement of this case").

(k) On December 16, 2014, the Plaintiff: (a) deemed that the conclusion of the instant agreement was completed with each of the instant committees regarding the civil petitions for fishery damage arising from the instant construction works; and (b) submitted a copy of the agreement in relation to the instant agreement along with a copy thereof.

(l) On January 2015, the Plaintiff and each of the instant committees requested an industry-academic cooperation foundation to conduct an investigation of fishery damage in order to investigate the scope of fishery damage caused by the instant construction works, the degree of damage, etc., and requested the J certified Public Accountants and K Certified Public Accountants to appraise the amount of fishery damage caused by the instant construction works.

(m) On February 12, 2015, pursuant to the instant agreement, the Plaintiff deposited KRW 5,000,000 on the deposit account in the name of the E Committee, pursuant to the H Association’s name.

(n) On August 27, 2015, the Administrator of the Korea Coast Guard issued a certificate of confirmation of completion to the Plaintiff on July 31, 2015. From August 28, 2015, the following day after the date of issuance of a certificate of confirmation of completion, the Plaintiff is using B water zone facilities (e.g., route, place of anchorage and line; hereinafter referred to as “B water zone facilities”) subject to the instant construction pursuant to Article 15(1) main sentence and (4) of the former Harbor Act (amended by Act No. 14452, Dec. 20, 2016; hereinafter referred to as the “former Harbor Act”).

(o) On October 22, 2015, the Plaintiff submitted 81,249,616,240 won of the total project cost required for the instant construction to the head of the Port and Fisheries Administration.

(p) On November 30, 2015, the head of the Korea Coast Guard calculated and notified the Plaintiff of the total project cost required for the instant construction at KRW 76,062,113,00 with the exception of compensation for fishery loss, investigation services for fishery loss and compensation for fishery loss, and the expenses required for appraisal of fishery loss. On December 8, 2015, the head of the Korea Coast Guard notified the Plaintiff of the final determination of the total project cost at KRW 77,368,89,000 by increasing the interest rate among the calculated amount.

C. The Plaintiff and each of the instant committees calculated KRW 3,283,590,00,00 by averaging each assessed value of the J certified public appraisal corporations and K certified public appraisal corporations as compensation for fishery damage. From April 21, 2017 to August 21, 2018, the E Committee distributed KRW 3,283,590,000 from around KRW 5,00,000 deposited by the Plaintiff in the H association’s deposit account in the name of the E Committee to around August 21, 2018 to KRW 3,283,590,00 and omitted compensation for fishery loss to KRW 416,980 (hereinafter “instant compensation”).

(r) On the other hand, around February 9, 2015, the Plaintiff paid 341,00,000 won each as appraisal expenses to J certified Public Appraisal Corporation and K Certified Public Appraisal Corporation, with an appraisal expense of KRW 682,00,000 (hereinafter “instant appraisal expense”). Around March 30, 2015, the Plaintiff paid 13,650,000 as advance payment for fishery damage investigation services, and paid 31,850,000 won each as the completion payment for fishery damage investigation services around January 16, 2017, and additionally paid 445,50,000 won in total to the Plaintiff, 30,000,000 won for the instant survey service expense of KRW 40,50,000 (hereinafter “instant survey service expense”). Around November 21, 2018, the Plaintiff applied for the instant survey service expense of KRW 400,400,000,000 for the instant survey service expense.

○ With respect to the instant construction project and the instant implementation plan (including the revised implementation plan), the details of the compensation for fishery damage were not specified. The conditions of approval for the amendment of the instant implementation plan stipulate “in the event of matters related to the preservation of investment funds in the process of civil petition consultation, prior consultation with the Korean office should be made.” However, the Plaintiff did not engage in prior consultation on the preservation of investment funds. According to Article 19(1) of the Enforcement Decree of the Harbor Act, pursuant to Article 19(1) of the Harbor Act, the sum of the expenses actually used in connection with the relevant harbor project as of the date of confirmation of completion of the relevant implementation plan (each subparagraph

The amount of the project cost is defined as the total project cost, and it is difficult for the instant construction project to reflect the compensation cost not specified at the time of submitting a specification of the total project cost ( October 22, 2015), on the total project cost, due to the completion of the assessment of the total project cost after confirmation of completion ( August 27, 2015).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 26, Eul evidence 3, 4, 6, 7 (including branch numbers), and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiff

For the following reasons, the total project cost of the instant construction project is KRW 3,284,06,9,980 for the Defendant’s final and conclusive KRW 77,368,889,00 for the instant compensation; KRW 445,50,00 for the instant survey services; and KRW 81,780,395,980 for the instant appraisal services (i.e., KRW 77,368,888,89,000 + + KRW 3,284,06,980 + KRW 445,50,000 + KRW 682,00 for the instant 7,368,89,000 for the instant compensation; and the Plaintiff has the right to gratuitously use the instant facilities up to KRW 81,780,395,980 for the instant survey services.

1) The instant compensation, survey service cost, and appraisal cost (hereinafter referred to as “compensation, etc.”) are “compensation” under Article 19(1)4 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 29138, Sept. 4, 2018; hereinafter the same) regardless of whether the permit for the instant construction project or the instant implementation plan is specified, which is naturally included in the total project cost.

2) The Plaintiff’s right of free use of harbor facilities, a non-management authority, is naturally recognized within the scope of the total project cost calculated under the Port Act and subordinate statutes, and cannot be arbitrarily restricted by the Administrator of the Port and Fisheries Administration.

3) Even if the cost has been paid after the date of confirmation of completion, if the payment was planned before the date of confirmation of completion, and if the Administrator of Maritime Affairs and Fisheries also knew well, the total project cost must be included therein.

B. The instant compensation, etc. is not included in the total project cost for the following reasons:

1) According to Article 19(1) of the former Harbor Act, if the total project cost is confirmed based on the date of confirmation of completion of the relevant harbor project and the total project cost is confirmed, the amount of compensation included in the detailed statement of the total project cost shall be deemed the total project cost until the date of confirmation of completion. The instant compensation, etc. is not actually used until August 27, 2015, which is the date of confirmation of completion, but does not include a compensation for fishery damage, etc. in the detailed statement of total project cost finally submitted to the head of the Korea Coast Guard on October 22, 2015. As such, the instant compensation, etc. not included in

2) According to the environmental impact assessment on the instant construction project submitted by the Plaintiff to the head of the Port and Fisheries Administration around July 2010, since the proliferation of pollutants arising from the instant construction project is limited to B inside the boundary of B, the Plaintiff’s payment of the instant compensation to nearby fishermen is merely for resolving the civil petition, and cannot be deemed as compensation for the rights, such as fishing rights, included in the total project cost, pursuant to Article 19(1)4 of the former Enforcement Decree of the Harbor Act.

3) Notwithstanding that the notification of the calculation of each total project cost of November 30, 2015 and the notification of the calculation of the total project cost of December 8, 2015 to the Plaintiff by the Commissioner of the Korea Coastal and Fisheries Office did not include compensation for fishery damage, the Plaintiff requested the Administrator of the Korea Coastal and Fisheries Office to dispose of the property only for the construction costs out of the total project cost as of December 3, 2015 and December 15, 2015, and did not raise any objection as to the exclusion of the instant compensation, etc. from the total project cost, the Plaintiff already recognized that the instant compensation, etc. were excluded from the total project cost.

3. Determination

(a) Scope of the right of free use of harbor facilities by a non-management authority;

1) The total project cost, which serves as the basis for calculating the period of free use by a harbor project implementer, who is a non-management authority, is calculated in accordance with the statutes, as the amount, duration, and grounds for occurrence thereof are all stipulated in the statutes (see Supreme Court Decision 99Du10148, Sept. 4, 2001). The non-management authority’s right to free use of harbor facilities is naturally recognized within the scope of the total project cost calculated under the harbor statutes (see Supreme Court Decision 2001Du2485, Aug. 24, 2001).

2) Therefore, whether the instant compensation, etc. is included in the total project cost that determines the scope of the right to use harbor facilities, depending on whether the instant compensation, etc. was stated in the implementation plan or in the specification of the total project cost submitted by the Plaintiff to the head of the Port and Fisheries Administration, cannot be deemed otherwise. Even if the head of the Port and Fisheries Administration added the approval condition that “in the course of consultation on the modification of the implementation plan of the instant case, it is related to the preservation of investment expenses,” and the Plaintiff accepted it, it cannot be concluded that the Plaintiff intended to waive the right to use the corresponding compensation, etc. in the event that the Plaintiff did not hold prior consultation with the Port and Fisheries Administration on the instant compensation, etc., and in principle, whether the instant compensation, etc. is included in the total project cost that determines the scope of the right to use the harbor facilities should be determined based on whether it is included in the expenses as prescribed in Article 15(4) of the former Harbor Act and Article 19(1)

B. We examine whether the Plaintiff renounced the right to use the instant compensation, etc. corresponding to the instant compensation, etc., and examine the following circumstances, i.e., whether the Plaintiff’s statement of total project cost, which was finally submitted on October 22, 2015, includes the Plaintiff’s statement of compensation, etc. at the time of final determination. However, even if the Plaintiff did not explicitly state the intent to waive the right to use the instant compensation, etc., even if it was not included as the Defendant’s assertion, it is difficult to request the Plaintiff and the Commissioner of the Korea Fisheries Agency to prepare and urge measures against the Plaintiff regarding the demand for compensation of damages, such as C, and the head of the Korea Fisheries Agency to determine the total project cost. However, the Plaintiff did not request the Korea Fisheries Agency to determine the total project cost by reflecting the content of each instant agreement and the situation corresponding to the Plaintiff’s appraisal and assessment of the total project cost, and thus, it appears that the Plaintiff did not request the Commissioner of the Korea Fisheries Agency 201.

1) According to Article 15(1) and (4) of the former Harbor Act, land and harbor facilities created or installed by a non-management authority for a harbor project shall revert to the State at the same time on completion of construction, and a non-management authority may gratuitously use harbor facilities that have been reverted to the State, as prescribed by Presidential Decree, within the extent of total project cost. Article 19(1) of the former Enforcement Decree of the Harbor Act provides that "the total project cost under Article 15(4) of the former Harbor Act shall be the sum of the following expenses actually used in connection with the harbor project at the time of confirmation of completion of the harbor project at issue." Article 15(1)4 and 5(c) of the former Harbor Act provides that "the cost shall be the sum of the following expenses actually used for the harbor project at the expense

2) We examine the following circumstances, which can be seen by adding the aforementioned facts recognized and the evidence stated in the evidence Eul evidence No. 2, and the purport of the argument in the statement of evidence No. 2, i.e., (i) the Plaintiff submitted to the Commissioner of Maritime Affairs and Fisheries around July 2010 to the effect that the proliferation of pollutants due to the instant construction works is limited to B inside the country; however, it is difficult to conclude that the damage was not caused to nearby fishermen due to the instant construction works, which was actually implemented on the sole basis of the prediction because it was merely predicted that the impact on the environment prior to the implementation of the instant construction works. (ii) the fact that fishery damage occurred to nearby fishermen due to the instant construction works and the amount of damage was revealed by the appraisal and assessment by the specialized institution, and (iii) the Administrator of Maritime Affairs and Fisheries also requested or urged to resolve the Plaintiff’s demand for compensation for damage, and (iv) the amount of compensation for damage caused by the instant construction works falls under the scope of compensation for free use of pollutants prescribed in the Enforcement Decree No. 1 of the Harbor Act.

D. Whether the instant compensation, etc. was excluded from the total project cost on the ground that it was paid after the completion confirmation date

In light of the following circumstances, i.e., fishing damage to nearby fishermen due to the instant construction works had already occurred between October 7, 2010 and July 31, 2015, the instant compensation, etc. were determined. However, although the scope and amount of damage were not clearly determined as of August 27, 2015 due to the completion of the investigation and appraisal of fishery damage, it was merely the fact that the scope and amount of damage had not yet been determined as of August 27, 2015. ② The Plaintiff deposited KRW 5,00,000,000, which was the financial resources of the instant compensation in the name of the E Committee pursuant to the instant agreement on February 12, 2015, and ③ the amount of compensation for the instant construction works and the instant compensation for fisheries damage was determined as 30,000,000,000,000 won, and the amount of compensation for the instant construction works and the instant compensation for fisheries damage was determined as 15,015.

E. Sub-committee

Therefore, the total project cost of the instant construction project is KRW 77,368,889,00 that the Defendant finally determined, and KRW 3,284,06,980 of the instant compensation; KRW 445,50,000 of the instant survey service cost; and KRW 81,780,395,980 of the instant appraisal cost plus KRW 682,00,000 of the instant appraisal cost (= KRW 77,368,888,89,000 + + KRW 3,284,06,980 + KRW 445,50,000 + KRW 682,00,000. From August 28, 2015, the following day after the date of completion of construction, the Plaintiff has the right to seek confirmation of the Plaintiff’s use fee for the instant water zone facilities exceeding the above KRW 7,368,80,000,000 of the instant compensation cost.

4. Conclusion

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