(영문) 인천지방법원 2010.11.25. 선고 2010구합2009 판결

The disposition of imposition of value-added tax is considered to be the disposition of imposition of 'stuffing fees and value-added tax', which is the same as the disposition of disposition of imposition of 'attached Nos. 3, 4, and 7 of 'the details of imposition of 'the Incheon Port Corporation'. However, the amount of each disposition of imposition of value-added tax seems to be the anchoring fee including value-added tax, and each disposition of imposition of value-added tax is deemed to be

Reasons

1. Details of the disposition;

A. The plaintiff is a company which is entrusted by B, C, and D (hereinafter referred to as "the shipbuilding company of this case") with a prior inspection (hereinafter referred to as "the prior inspection of this case") to verify the safety and performance of liquid natural gas transport vessels constructed by the above company.

B. The preliminary inspection of this case generally consists of ① gas shipment (2-day required for testing), ② gas trial (1-2 week required) on the sea, ③ gas return (1-day required) after the examination. This is possible only in a port where liquefied natural gas terminal is located. Thus, the prior inspection of this case was conducted using Pyeongtaek and Incheon Port equipped with such facilities. The Plaintiff entered Incheon Port to return the remaining gas after the examination. In the aforementioned prior inspection process, the Plaintiff entered Incheon Port for the purpose of gas shipment and the test.

C. On the other hand, according to the "Regulations on the Use and Use Fees of Port Facilities" [Attachment Table 2] and the "Regulations on the Use and Use Fees, etc. of Port Facilities of the Incheon Harbor Corporation" [Attachment Table 2] and the above "Regulations on the Use and Use Fees, etc. of Port Facilities" (hereinafter referred to as the "Rules on the Use Fees of Harbor Facilities" hereinafter), if a vessel entering a port falls under the "out of a ship entering a port as a factory ship for repair and departing from the port as an official ship (hereinafter referred to as the "repair Ship")", the vessel is exempted from the usage fees of port facilities. For the preliminary inspection of this case, the plaintiff submitted to the defendants an application for the Permission of Use of Port Facilities and Port Facilities, stating "other (99)" as the "other (99)".

D. The Defendants deemed that it is reasonable to exempt the Plaintiff from the fees for the use of harbor facilities in accordance with the Guideline of the Ministry of Land, Transport and Maritime Affairs (No. 8 May 8, 98) that the vessel built in the shipbuilding yard within a trade port and departing from the factory without using the harbor facilities. The Defendants exempted the Plaintiff from the fees for the use of the harbor facilities.

E. However, around May 208, the Ministry of Land, Transport and Maritime Affairs issued a direction to the above Ministry of Land, Transport and Maritime Affairs to only apply the vessel built at the same trade port. Since the Plaintiff’s prior inspection is not a vessel built at the Incheon port, it is not a vessel built at the Incheon port, and it is reasonable to collect harbor facility usage fees in cases where the purpose of entry is to conduct a performance test at the exclusive port of liquefied gas, and thus, it is reasonable to collect harbor facility usage fees that have been reduced or exempted after 1983.

F. Accordingly, the Defendants imposed on the Plaintiff usage fees for harbor facilities for the past five years as shown in the [Attachment List] (hereinafter “instant disposition”).

G. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Prime Minister on October 15, 2008, but was dismissed on January 1, 2010.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 10 (including virtual number), the purport of the whole pleadings

2. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

(1) The instant disposition is unlawful since the repair vessel or transit vessel entering Incheon port for the preliminary inspection of the instant vessel, which is subject to the reduction of fees for the use of harbor facilities, falls under the “repair vessel under Article 29(1)3 of the Enforcement Decree of the Harbor Act, which provides for the exemption of fees for the use of harbor facilities or the “traffic vessel under attached Table 2” under the provisions on fees for the use of harbor facilities.

(2) Violation of the principle of trust protection or the principle of prohibition of retroactive imposition.

Even if the use of harbor facilities for the preliminary inspection of this case does not constitute grounds for exemption from user fees of harbor facilities, the disposition of this case is in violation of the principle of trust protection or the prohibition of retroactive imposition.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether it constitutes a repair vessel or transit vessel

First, as to whether the liquid natural gas transport vessel entering into Incheon port for the preliminary inspection of this case constitutes "repair vessel", Article 32 (3) of the Harbor Act (wholly amended by Act No. 9773 of Jun. 9, 2009), a harbor facility operator or a lessee may collect user fees from a person who uses harbor facilities pursuant to paragraph (1) of this Article: Provided, That a person prescribed by Presidential Decree may be exempted from all or part of user fees, and Article 29 (1) 3 of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 20722 of Feb. 29, 2008) provides that a vessel may be exempted from all or part of user fees, which can be used for the repair of a vessel, and in light of the objective meaning of "repair", the prior inspection of this case cannot be deemed as falling under this case, and it cannot be deemed that the concept of "construction or repair of a vessel already constitutes "construction or repair of a vessel."

Then, according to Article 32 (3) of the above Harbor Act and Article 29 (1) 10 of the Enforcement Decree of the same Act, the above liquefied natural gas transportation vessel constitutes a traffic vessel. Under Article 32 (1) of the above Harbor Act and Article 29 (1) 4 of the Enforcement Decree of the same Act, a port facility operator or a lessee may be exempted from the whole or part of the fees for the use of harbor facilities, one of the cases deemed necessary for the management and operation of a harbor. Under Article 9 (3) 4 of the Rules on the Fees for the Use of Harbor Facilities, one of the cases is prescribed in [Attachment 2] for the promotion of a harbor, balanced development between ports, or promotion of distribution of cargo. [Attachment 2] provides that "traffic vessel" as one of the cases eligible for exemption from the fees for the use of harbor facilities, and the above "traffic vessel" is defined as a "traffic vessel" in [Attachment 1]. The plaintiff's assertion that it is not only a non-profit vessel for the purpose of passage of a vessel, replacement, repair, repair, repair or simple.

(2) In general in administrative legal relations, the principle of protecting trust or prohibition of retroactive imposition, in order to apply the principle of protecting trust to an administrative agency's act, first, the administrative agency must express a public opinion that is the subject of trust to an individual, second, the administrative agency's opinion that is justifiable and trusted to the individual, should not be attributable to the individual. Third, the administrative agency should have conducted any act that is contrary to the above opinion list. Fourth, the administrative agency's disposition that goes against the above opinion list, thereby infringing the individual's interest. When meeting these requirements, the administrative agency's disposition is unlawful as an act contrary to the principle of protecting trust (see, e.g., Supreme Court Decision 95Nu3787, Feb. 23, 1996).

Therefore, the following circumstances are acknowledged to add the purpose of the entire pleading to Gap's evidence Nos. 2, 5, 10, 11, and 12 (including the serial number). The plaintiff entered Incheon port for the preliminary inspection of this case, i.e., the plaintiff submitted a provisional statement of financial resources to the defendants. The English document attached to the above provisional statement of financial resources has the quality for shipping LNG for the purpose of preliminary inspection. The phrase "this document is valid only for Glass," and the phrase "this document is not for the sole preliminary inspection" was written in English. ② The defendant exempted the plaintiff from the fees for using the port facilities for more than 15 years for the purpose of the preliminary inspection of this case, and the plaintiff did not separately claim the fees for using the port facilities for the purpose of the pre-inspection of this case to the public corporation entrusted with the pre-inspection of this case. ③ The plaintiff did not enter the plaintiff's view that the defendants did not know that the pre-inspection of this case's use fees for the purpose of the pre-inspection of this case to the plaintiff's entry into port facilities.

3. Conclusion

If so, the plaintiff's claim is justified without examining the remaining arguments of the plaintiff, and it is so decided as per Disposition with the assent of all.