(영문) 울산지방법원 2015.1.15.선고 2013구합1328 판결

1. On April 10, 2013, the Defendant’s disposition that “shall not handle the goods other than the wood wharfs, which correspond to the basic harbor plan and the permission for the execution of harbor works provided by the Plaintiff shall be revoked.”

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 27, 2005, the Defendant: (a) on December 27, 2005, the project implementer designated and announced the non-management authority of the Pluri Port (1-2 phase) construction project in Ulsan-si, Ulsan-si, the Republic of Korea, on a non-management authority of the project implementer; and (b) Tae Young-gu (referring to the change of the name to the Plaintiff; hereinafter referred to as the “Plaintiff”) formed a consortium with the East Pulp Co., Ltd., the company, the Slish Co., Ltd., and the Slish Pulp Co., Ltd., the name of the company was changed into a MPP Co., Ltd., Ltd.; (b) Sejong Pulp Co., Ltd., the name of the company was changed to the 3rd Pulp Korea Terminal Co., Ltd., Ltd., Ltd., and (c) the Defendant changed to the Plaintiff Co., Ltd., Ltd., 2000 and the 3rd Pulp Co., Ltd.

B. On June 27, 2006, the Defendant issued a permit to implement harbor works to the non-management authority of the instant wharf to the Plaintiff, etc., and the details are as follows.

A person shall be appointed.

C. On August 21, 2007, the defendant notified the plaintiff et al. of the purport that "the plaintiff et al. notified the plaintiff et al. of the purport that "to re-examine the scope of the state's jurisdiction over the wharf of this case," and the plaintiff et al. respondeded to the defendant on the same day that "the whole area of the building site belongs to the state: the ownership of the State, the water area facilities (sea route, the president of the vessel, and the stuff: the whole area of the State: the ownership of the building site." On December 27, 2007, the defendant changed the plaintiff et al. to the plaintiff et al. from the "State" to the plaintiff et al.

D. On June 26, 2008, the Plaintiff filed an application with the Defendant for the authorization of the implementation plan of the harbor project with the content that the plan for the use of the instant wharf facilities and the purpose of the use thereof is "timber and miscellaneous timber", and the Defendant approved the application with the content of "construction of an exclusive container for the smooth supply of timber such as friendly chips" on September 3, 2008, the Plaintiff filed an application for the authorization of the implementation plan of the harbor project with the Defendant several times, and the Defendant has approved each of them, and the Plaintiff submitted the business plan or the terminal operation plan with the purport that "the Defendant will deal with other cargo than timber" on a multiple occasions. The Defendant did not indicate the refusal of such business plan or the wharf operation plan.

E. On May 29, 2009, the Plaintiff et al. started the instant wharf construction and completed the said construction at the end of January 4, 2012, after obtaining confirmation of port facility conformity, around October 2010, and around December 2010, the date of completion of the said construction, the Plaintiff et al. reported the purpose of use to the Defendant before completion of construction with "explosive entry into and out of the site for shipping blocks for vessels", and the Defendant filed a request with the Board of Audit and Inspection for handling the instant cargo to the Defendant by 30 minutes on October 13, 2010 and December 16, 201 without filing a request with the Board of Audit and Inspection for the alteration of the terms and conditions of the instant port plan, such as "the alteration of the terms and conditions of use by the Plaintiff et al. to the Defendant, such as "the alteration of the terms and conditions of use by the Plaintiff et al. to the instant port plan by 2000."

It is improper for the Defendant to accept the report without any consideration (hereinafter referred to as "inappropriate matters pointed out to be inappropriate to accept the report of use before completion of construction). ③ In the future, the Defendant requested caution (hereinafter referred to as "the demand of the Board of Audit and Inspection of this case") to include: (a) it is not possible for non-management authorities to change a wharf to a non-state-owned wharf without any amendment to the basic harbor plan; and (b) if a non-management authority reports the use of harbor facilities before completion of construction, it is necessary to examine whether the non-management authority will use a wharf in compliance with the purpose prescribed by the basic harbor plan Act and the permission of the implementation of the harbor project and to thoroughly examine whether the non-management authority will use the wharf (hereinafter referred

G. On April 9, 2013, the Defendant notified the Plaintiff of the following matters (hereinafter referred to as “instant notice of audit results”) under the title “a notice of the audit results by the Board of Audit and Inspection on the wharf of this case” (hereinafter referred to as “the instant notice of audit results”).

1.The Board of Audit and Inspection notified the following points of the audit results on the "harbor works of the non-management authority of the Republic of Korea in connection with the construction of the instant wharf". - (h) In the case of the instant wharf, the purpose of the instant harbor plan designated as a timber wharf is not to modify the basic harbor plan, and the relevant work should be thoroughly conducted so as not to modify the basic harbor plan designated as a timber wharf and not to make it possible for various shippers to use a timber-only wharf. However, the Ministry of Audit and Inspection has changed the entire shipment to the state without amending the basic harbor plan designated as a timber wharf, and has changed the entire shipment to the operator to handle other cargo, such as a wood-only liquid, etc. without changing the basic harbor plan designated as a timber wharf.However, in addition, in the case wharf designated as a timber-relic product that is not a timber-free product in the basic

Although the report of use should have been accepted by reviewing whether the report of use prior to completion is in compliance with the basic harbor plan and the permission for the execution of harbor works, or not it does not interfere with the handling of timber, the operator will handle the vessel block at the wharf of this case, which is a wooden wharf for two times.The defendant accepted the report of use prior to completion, and the defendant will accept it without any consideration.0 As a result, the wharf of this case will handle the vessel block of 593,000 tons (96.3%) among the total 616,000 tons of all the handled until now, and attempt to load and unload elements under the basic harbor plans and the permission for the implementation of harbor works.2. With regard to the above pointed out, in the future, in the wharf of this case, it would be likely to interfere with the handling of timber cargo of Ulsan under the basic harbor plans.

[Ground for recognition] Facts without dispute, Gap evidence Nos. 2, 3, 5-8, 12, 13, 14, 17, 18-21, 24-26, 28, Eul evidence Nos. 1 through 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

The notice of the audit results of this case constitutes an administrative disposition that restricts the rights of the plaintiff, etc. and imposes obligations, and thus, it should be revoked for the following reasons.

A. The instant wharfs do not have any legal binding force as the non-reverted wharfs, and there is no other explicit harbor statutes that restrict the handling of the unreverted wharfs. Thus, the instant wharfs cannot limit the handling of the instant wharfs.

B. Even if the wharf of this case falls under the timber exclusive wharf, the defendant has given trust to the plaintiff et al. by expressing the public opinion that "it is possible to handle cargo other than timber". The notice of the audit results of this case violates the principle of trust protection. In light of the fact that there is no business owner using timber at the wharf of this case and the damage the plaintiff suffered from the disposition of this case was enormous, the notice of the audit results of this case exceeded and abused discretion.

D. The instant audit results notice has procedural defects that did not give public notice pursuant to Article 71(3) of the Harbor Act.

3. Determination on the defense prior to the merits

A. The defendant's assertion

The instant notice of audit results is merely a re-verification of the purpose of the instant wharf and the cargo subject to handling prescribed in the implementation plan for harbor works and the implementation plan for harbor works, and it does not impose a new obligation on the Plaintiff. Therefore, the instant lawsuit is unlawful.

B. Determination

1) Article 2 subparagraph 1 of the Administrative Litigation Act provides that "a disposition, etc. means the exercise or refusal of public authority, as an enforcement of law with regard to a specific fact by an administrative agency, and a ruling on other corresponding administrative actions and administrative appeals." Generally, an administrative disposition which is subject to appeal litigation refers to an act of an administrative agency in public law and directly related to the rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations with regard to a specific matter, or giving rise to other legal effects, and an act which does not directly affect the legal status of the other party or other related persons, is subject to appeal litigation.

In addition, an administrative disposition subject to appeal is not an administrative disposition (see, e.g., Supreme Court Decision 2007Du10198, Nov. 15, 2007). In addition, an administrative disposition subject to appeal litigation shall have the appearance of an administrative disposition. Whether an administrative disposition has a appearance of an administrative disposition shall not be determined abstractly and generally, and whether an administrative disposition satisfies a certain degree of establishment or validity requirements in its subject, content, form, and procedure, whether the other party to the act is aware of it as an administrative disposition, whether the other party to the act is aware of it as an administrative disposition, whether there is any disadvantage or apprehension for the other party to the act, and the attitude of the relevant administrative agency, etc. (see, e.g., Supreme Court Decision 93Nu126

2) In this case, the following circumstances revealed according to the above recognition facts, namely, the plaintiff et al. submitted a business plan, terminal operation plan, etc. to the defendant several times after the execution of the harbor project, and the defendant did not express any opinion. Rather, the defendant approved the report of use prior to completion of the project so that the plaintiff et al. can handle other cargo (ship block, etc.) than timber without any particular objection. The plaintiff et al. dealt with cargo other than timber before the notice of the audit results of the instant case was issued by the Board of Audit and Inspection, and considering the contents of the notice of the audit results of the instant case, the plaintiff et al. mentioned in Paragraph 1 in Paragraph 1 and Paragraph 2 in Paragraph 2, and Paragraph 2, in relation to the above pointed out matters, the plaintiff et al. may not deal with cargo other than the cargo of this case, which is suitable for no later than Clause 9 of the Harbor Act, and Paragraph 2 of this case's subsequent request to suspend the work of the plaintiff et al.

In full view of the following facts: (a) the notice of audit results of the instant case’s audit results may constitute “other necessary dispositions or measures by the administrator of a regional maritime affairs and port office under Article 71(1) of the Harbor Act” and (b) the penal provision may apply to the case’s violation; and (c) the Plaintiff, etc., etc., could not actually handle cargo other than wood at the wharf of this case as a result of the instant audit and inspection by the Board of Audit and Inspection’s notification, it is reasonable to view that the contents of paragraph (2) in the notice of audit results of the instant case’s audit and inspection results as restricting cargo subject to handling of the wharf of this case, unlike the past, beyond the previous one, by simply informing the matters pointed out by the Board of Audit and Inspection’s request for the instant attention, and thus, constitutes an administrative disposition that directly changes in the Plaintiff’s specific rights and duties, such as imposing new duties on the Plaintiff, etc. or giving legal effects (hereinafter “the instant notice of audit results”).

3) Therefore, prior defenses by the Defendant on a different premise are without merit.

4. Whether the instant disposition is lawful

(a) Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

B. Determination

1) Acts and subordinate statutes on the grounds of the instant disposition

In light of the purport of Article 71 (1) 2 of the Harbor Act, "where a harbor project is permitted under the main sentence of Article 9 (2), approval of a harbor project implementation plan, and a report on the formulation of a harbor project implementation plan under Article 10 (2) and (4), permission or approval under this Act may be revoked, or an order may be issued, to suspend or alter a project, to reinstate a facility or an article, or to suspend the operation of a facility or an article, or to take other necessary measures, or to take other necessary measures." In light of the purport of Article 71 (1) 2 of the Harbor Act, where "use of a harbor facility in violation of the provisions of the Harbor Act" is "use of a harbor facility in violation of the provisions of the Harbor Act, such as permission for harbor project under the main sentence of Article 9 (2), approval of a harbor project implementation plan, and permission for the use of a harbor facility," the instant disposition constitutes a violation under Article 71 (1) 2 of the Harbor Act, and thus, Article 71 (1) 21 of the Harbor Act constitutes grounds for the instant disposition.

2) Whether procedural defects in the instant disposition are procedural defects

A) Article 71(3) of the Harbor Act provides that "where a disposition, etc. is made under paragraph (1), it shall be publicly notified, as prescribed by Presidential Decree." Article 75(1) of the Enforcement Decree of the Harbor Act provides that "the Minister of Maritime Affairs and Fisheries shall, where he/she issues an order or disposition under Article 71(1) of the Act, publish the name or name of the person subject to such order or disposition, details of the violation, details of the administrative disposition, period of the disposition

B) In this case, there is no dispute between the parties that not only at the time of the instant disposition, but also at the time of the instant disposition, the Defendant did not publish the “matters such as the other party to the disposition, details of the violation, and details of the disposition” under Article 71(3) of the Harbor Act and Article 75(1) of the Enforcement Decree of the Harbor Act. Accordingly, there is a serious procedural defect in violation of Article 71(3) of the Harbor Act.

3) Therefore, the instant disposition is unlawful without having to further examine the remainder of the Plaintiff’s assertion.

4. Conclusion

The plaintiff's claim shall be accepted, and it is decided as per the Disposition.