2010Nu268. Revocation, etc. of public announcement of a plan to select a non-management authority-management authority-project operator.

O Construction Co., Ltd.

Gwangju Dong-gu

○○ Representative Director

Attorney Kim Yong-hwan, Counsel for the plaintiff-appellant

○ Head of the regional maritime port office

Litigation Performers MaO. Mao0

O0 Stock Company

Gangnam-gu Seoul

Representative Director OO, Name ○

Law Firm Rate, Attorney Park Young-chul, Counsel for the defendant-appellant

Attorney Go-ro et al., Counsel for the defendant

Gwangju District Court Decision 2007Guhap3800 Decided December 31, 2009

July 13, 2010

September 7, 2010

1. Revocation of the first instance judgment.

2. The defendant's non-management authority's refusal to designate a non-management authority's project operator against the plaintiff on November 7, 2007 and the non-management authority's permission to implement harbor works against the defendant's intervenor on October 13, 2008 shall be revoked, respectively.

3. Of the total litigation cost, the part between the Plaintiff and the Defendant out of the total litigation cost is borne by the Defendant, and by the supplementary intervenor, respectively.

The same shall apply to the order.

1. Details of the disposition;

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 14. 20, 34, 35, 36, Eul evidence No. 30, the result of on-site inspection by the court of first instance, the purport of the whole pleadings

A. On October 11, 2001, the Plaintiff is a company that executed reclamation works with a license for reclamation of public waters in the area of 00 dong-si 00 dong-si 00 dong-si 00 dong-si 00 dong-si 200 (hereinafter referred to as “the complex area”).

B. On the left side of the public waters entirely reclaimed land, there are 320,000 tons exclusive and exclusive use rights of 320,000 tons and 250,000 tons and 10,000 tons and more, and 300,000 tons and more (480 meters in length) with exclusive and exclusive use rights of 00,000 tons and more than 1 U-10,000,000 and more than 463 meters in width between the two wharfs (hereinafter “the public waters of this case”).

C. On September 21, 2007, the Defendant publicly announced the following non-management authority's selection of a non-management authority's project implementer (hereinafter referred to as the "project of this case") according to the work process guidelines for non-management authority's permission, etc. (No. 2006-23 of the Ministry of Oceans and Fisheries's notification on June 30, 2006; hereinafter referred to as the "business process guidelines") (hereinafter referred to as the "public announcement of this case").

- Business location: The public water surface area of this case;

-. Business name: A project for constructing a stone-fin-type oil wharf;

-. Scale: One type, such as a stone-fin wharf and loading and unloading facilities of 120,000 tons;

- Qualifications: Bans or withdrawals of oil through facilities constructed on the basis of this project;

two or more corporations, including those enterprises, that intend to sustain;

It is possible to jointly participate in such activities.

- Application period: by October 31, 2007

D. The Defendant filed an application for the designation of the project implementer of the instant construction project with the Defendant on October 31, 2007, asserting that the Plaintiff was a person with preferential interest or right pursuant to relevant Acts and subordinate statutes, and filed an application for the designation of the project implementer of the instant construction project during the said period. On November 2, 2007, the Defendant notified the Defendant on November 2, 2007 of the fact that the Plaintiff’s application for the designation of the project implementer does not participate in the selection procedure in accordance with the public notice of the instant case, and in fact, notified the Defendant of the lack of efficacy to be selected as the project implementer of the instant construction project, thereby indicating the intention of refusal and continuing the selection procedure only for the respondent’s application while excluding the Plaintiff, and publicly announcing the Defendant’s application for the designation of the project implementer of the instant case on November 7, 2007 as the project implementer of the instant case.

E. After that, on October 13, 2008, the Defendant issued a disposition of permission for the implementation of a non-management agency and a non-management agency (hereinafter referred to as the "instant permission disposition") with respect to the supplementary intervenor, and publicly notified the same as the notification No. 2008-82 on the same day.

2. The rejection of the designation of the project implementer and the disposition on permission for the execution of the project (hereinafter referred to as "each disposition of this case").

(1) Whether the act is lawful

A. The plaintiff's assertion

(1) Upon filing an application for the designation of the project implementer of this case, accompanied by the letter of business operation and accompanying documents, which contain the main documents specified in the written notice of this case, the Plaintiff filed an application for the designation of the project implementer of this case within the application period. However, the application for the designation of the project implementer of this case submitted by the Plaintiff is not derived from the intent to make an application separate from the written notice of this case, but was aimed at indicating the illegality of the Defendant’s business process and making the Plaintiff’s application reasonable. However, the Defendant completely excluded the Plaintiff from the review procedure set forth in the written notice of this case, and subsequently announced the Defendant’s selection of the Defendant as the project implementer of this case after the Defendant’s application was conducted only for the Defendant’s assistant, and thus, each of the dispositions of this case, which were made without excluding the Plaintiff as the actual representative, was unlawful since it violated the principle of equality and the principle of trust protection, and all of the Defendant’s selection procedure set by the Defendant.

(2) The Plaintiff is a reclamation licensee with a 500-meter radius in the instant public waters area, and has the legal status to be a project implementer first under the Public Waters Reclamation Act, the Public Waters Management Act, and the Harbor Act. Each of the instant dispositions is unlawful by infringing the Plaintiff’s priority. The Defendant sought the Plaintiff’s consent prior to the instant disposition of permission for the implementation under the Public Waters Reclamation Act and the Public Waters Management Act, and consult in advance with the head of the competent administrative agency whether the instant non-management authority’s permission for the implementation of the public waters conforms to the Public Waters Reclamation Act and the Public Waters Management Act. The instant disposition of permission for the implementation of the implementation of the public waters is also unlawful as it is in all of these procedures.

(3) After the completion of reclamation works, the Plaintiff installed oil storage facilities, etc. by investing enormous funds in the instant public waters, and planned to install a wharf facility of 120,000 tons in the instant public waters area to use the reclaimed land for export and import as a logistics complex. The Defendant had the Intervenor joining the Defendant, who already secured 2 lines for the primary floating20,000 square meters in the instant public waters area, again started the instant construction project to build a wharf for exclusive and exclusive use in the instant public waters area, which makes it impossible for the Defendant to use the Plaintiff’s application for designation as the Plaintiff’s project implementer and the Defendant’s Intervenor’s disposition of permission to implement the instant construction project in the instant public waters area is unlawful by abusing discretionary power, such as lacking equity and reasonable feasibility.

(4) Before about 7 months prior to the instant public notice, the Plaintiff submitted to the Defendant a letter of recommendation for the establishment of a wharf facility with a 100,000 tons or more, and the Defendant, considering that the public waters area of this case is the only number of cases where a wharf facility with a 200,000 tons or more can be installed, notified that the Plaintiff should reconsider the plan, and the Plaintiff again submitted to the Defendant a letter of intent for the establishment of a wharf facility with a 200,000 tons or more, the Defendant refused to apply for the designation of the Plaintiff and issued

B. Relevant statutes

It is as shown in the attached Table related Acts and subordinate statutes.

(c) Facts of recognition;

(1) On October 7, 200, the Plaintiff began consultations with the Defendant to obtain a license for reclamation of public waters in the complex, and around March 17, 2001, the Plaintiff submitted a construction plan for reclamation of public waters in the complex area to the Defendant and stated in the said construction plan that “if feasibility is secured after examining the plan for development of ports in neighboring areas, trends of increase in water volume, operational profitability and the development effect of linkage with the reclaimed land, the operation safety with the raw milk wharf and the OO wharfs surrounding the reclaimed land, the operational direction of the Ministry of Maritime Affairs and Fisheries, etc., and then the contact facilities (class 3,00 before and after the completion of the reclamation project) are to be installed and operated.”

(2) On July 2001, the Minister of Oceans and Fisheries published the ‘Master Public Waters Reclamation Basic Plan’ which includes a plan for the reclamation of the second public water surface in accordance with the Ministry of Oceans and Fisheries Notice No. 2001-49 of the Ministry of Maritime Affairs and Fisheries, and the above reclamation basic plan was added to the conditions of reflecting the plan for the reclamation of the second public water surface in the front area of the complex.

(3) On October 11, 2001, the Plaintiff obtained a license for reclamation of public waters in complex from the Defendant (a reclamation area: 126,438m square meters: circulation/processing facilities; the time limit for completion: 36 months after the commencement of construction; 14 times after the commencement of construction); and (b) submitted to the Defendant an application for authorization for the permit for the implementation of reclamation of public waters in complex area reclamation project on November 26, 2003, and obtained authorization from the Defendant on December 4, 2003. The detailed project plan for reclamation in complex area included in the above application is anticipated that the main cargo handling of the site for distribution processing facilities will be the main cargo, but it is anticipated that the main cargo handling of the site for distribution processing facilities will be the land transport volume, but it is expected that the plan will be connected to a part of the vegetable block (building volume 110,000 type type)."

(4) Request for reflection of the Defendant’s Intervenor’s business plan and the Defendant’s Intervenor’s basic plan for broad-sea ports

On the other hand, the Defendant: (a) issued a plan to establish a 250,000 tons-pin wharf which can be exclusively used in addition to the existing wharfs; and (b) requested the Defendant to take measures to reflect the Defendant’s non-management authority’s basic plan on the “Balyang Port Master Plan” on July 31, 2006; and (c) on August 7, 2006, the Defendant submitted to the Plaintiff the Plaintiff’s opinion on whether it would interfere with the follow-up utilization of the complex reclaimed site; and (d) on the 10th of the same month, the Defendant submitted the Plaintiff’s request to the reclamation licensee’s opinion on the 250,000 tons-pin wharf construction of the public waters of this case by blocking the Defendant’s shipping route of the reclaimed land; and (e) the Defendant submitted the Plaintiff’s opinion to the Minister of Oceans and Fisheries on the 2000,0000 tons-pin port construction and its neighboring office to the Defendant’s 20160,06.

(5) Submission, etc. of revised business plan of the Intervenor joining the Defendant

After that, on September 13, 2006, the Defendant submitted a light project plan changing into a 120,000 tons-pin-pin-pin-pin-pin-pin-pin-pin-pine wharf to the Defendant, who is a nearby reclamation licensee, and on September 15, 2006, the Defendant’s business location to the Intervenor joining the Defendant around September 15, 2006 pursuant to a large-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pin-pock, even if a vessel of less than 1,00 tons is traveling, traffic may be restricted at night, emphasizing and adjacent wharfs, and it is necessary to use a tugboat. The Defendant’s stocking plan should be taken into account that the location is the only one for construction of a wharf exceeding 200,00,000 tons.

(6) Notice of the basic harbor plan

On December 27, 2006, the Ministry of Oceans and Fisheries announced "the second national harbor master plan revision plan" as announced by the Ministry of Oceans and Fisheries, No. 2006-91. The public notice drawing was indicated to newly establish a 120,000 tons terminal in the public waters zone of this case.

(7) The Plaintiff’s submission of a wharf construction proposal

After that, on February 12, 2007, the Plaintiff submitted to the Defendant a wharf construction proposal to the effect that “if the Plaintiff wishes to contribute to the stable supply, storage, and the development of the regional economy of petrochemicals within the Corporation by utilizing the complex reclaimed land as a logistics complex, it is inevitable to establish a 100,000 tons or more wharf on the front side of the reclaimed site.” However, on April 4 of the same year, the Defendant submitted from the Defendant a letter of opinion to the effect that “it is inevitable to establish a 120,000 tons or more wharf on the part of the Defendant’s Intervenor’s Intervenor’s project site as reflected in the basic harbor plan that the Plaintiff recommended is planned to construct a 120,000 tons or more crude oil wharf, the 100,000 tons or more wharf construction plan should be reviewed.”

(8) Holding a meeting by the Defendant

On April 20, 2007, the defendant, while attending the defendant's intervenor and the plaintiff's attending the meeting, held a briefing session in order to "the additional 120,000 tons of crude oil base line" development plan reflected in the revised plan for the national trade port. From that place, the defendant's intervenor and the defendant's intervenor expressed their opinion that, in order to protect the plaintiff's business, the plaintiff will install a 120,000 tons wharf and use it as a product-related shipping unit, and the plaintiff will install 20,000 tons of the 20,000 tons of the 20,000 tons of the 20,000 tons of the 20,000 and the result of the meeting was that the defendant held a meeting again on September 19, 207 between the plaintiff and the defendant's participant and the defendant's participant, even after giving the notice for the selection of the project operator in this case, they should exchange opinions on the joint operation of the public waters in this case and a third party development plan.

(9) The publication of this case and the plaintiff's application for designation

On September 21, 2007, the Defendant issued the instant notice on September 21, 2007, among the Plaintiff’s submission of the business intent and the right owner based on the License for Pool License, and notified the Plaintiff and the Defendant’s Intervenor of the fact, and on October 31, 2007, the Plaintiff filed an application for designation of the Plaintiff as a project developer, including the Plaintiff’s assertion that the Plaintiff is in a preferential position as the project implementer of the instant construction project, under the title “the case of the application for designation of the non-management authority of the port-to-port oil storage construction near the crude oil wharf, which is within the period of receipt of the application specified in the instant notice.”

On November 7, 2007, 2007, the Defendant requested the Plaintiff to reply to the Plaintiff by November 5, 2007. The Plaintiff responded to the Defendant on November 2, 2007, that the Plaintiff has legal interest as a project implementer for the instant construction in accordance with the relevant Acts and subordinate statutes as a business entity who obtained a reclamation license and a neighboring land tenant. The instant public notice is unfair because the Plaintiff should give up such priority position and participate in the selection procedure as a general competitor. Therefore, it is deemed that the Plaintiff was the person holding the above priority position and the Plaintiff would be a general competitor without priority in the selection procedure as set forth in the instant public notice, and that the Plaintiff would participate in the selection procedure as a project implementer without priority in the instant public notice. The Defendant again designated the Plaintiff as the project implementer by November 7, 2007, which is the date on which the Plaintiff was decided to select the project implementer under the instant public notice, and then notified the Plaintiff that the Plaintiff would have no possibility to participate in the instant public notice to the effect that the Defendant would continue to select the Plaintiff.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 8, 9, 14 through 16, 19, 21 through 29, 33 through 36, 43-1-2, Eul evidence Nos. 4, 6, 12, 13, 25, 26, and 28, each statement of facts No. 1, 8, 9, 14 through 16, 21 through 36, 43-1-2, 12, 13, 25

D. Determination

(1) Determination on the lawfulness of the procedure for selecting a project implementer of the instant construction project

(A) Character of the Plaintiff’s application for designation

As seen above, ① the Defendant had experienced the opinion that it is necessary to give consent to the Plaintiff, etc., who is the licensee, on the request for reflection of the original master plan for the installation of two oil parts of the Defendant joining the Defendant. ② After the construction work of this case was included in the decision of the revised master plan for trade ports and notified the Defendant, the Plaintiff continued to be aware that there was a business plan related to the construction work of this case. The Defendant also had to hold a meeting to coordinate interests of the Plaintiff, who is the reclamation licensee, on the other hand, on the ground that there is no possibility of competition between the construction work of this case and the public announcement of the revised master plan for trade ports, and that there is conflict between the Defendant and the above two parties before the public announcement of this case. ③ Even if the Plaintiff’s request for designation was made, the Plaintiff would continue to exchange opinions with one another, and even if the Plaintiff was selected, the Plaintiff would have continued to submit the revised master plan for trade in this case’s public announcement of this case to the Plaintiff’s right to request the designation of the Plaintiff.

(B) As to the illegality of each of the dispositions of this case

As above, the plaintiff applied for the designation of a project operator in accordance with the public notice of this case in addition to the plaintiff's claim on priority status, etc. In such a case, the defendant, who is an administrative agency, should first consider the plaintiff's claim on the plaintiff's priority status at the final selection stage and take measures according to the decision on the propriety of the claim, and should have proceeded with the plaintiff's request for the designation of the project operator without prejudice for the reason that there is a defect that can not be recovered from the plaintiff's request for the designation. However, if the plaintiff's priority status claim is without merit, the decision on the selection of the project operator according to the public notice of this case should be made at the final selection stage, and if the plaintiff's priority claim is justified, it should be reflected in the final selection stage regardless of the work process process, and it should be considered that the defendant did not participate in the selection plan of the plaintiff in this case at the final selection stage of the plaintiff's application for the designation of the project operator, and that the plaintiff's request for the designation of the plaintiff in this case was unlawful.

On the other hand, considering the circumstances that led to the progress of 77.35% as of April 2010 among the entire process of the instant construction project implemented by the Intervenor joining the Defendant, it may be problematic whether it constitutes a case where the judgment was rendered. However, considering that the Plaintiff applied for the suspension of validity against the “disposition selected by the Defendant on November 7, 2007 as the project implementer of the instant construction project,” while the Defendant applied for the suspension of validity against the “disposition selected as the supplementary intervenor as of November 7, 2007 during the proceeding of the first instance trial,” and the construction of the instant case was commenced accordingly, the said circumstance alone alone cannot be deemed to be significantly inappropriate for public welfare to revoke each of the instant dispositions that are illegal due to a serious procedural defect. Accordingly, the instant case does not constitute a case where the ruling of the circumstances is rendered.

(2) In addition, as long as each disposition of this case was judged to be unlawful due to serious defects in the selection procedure, the Plaintiff’s remaining allegation of illegality, such as that the preferential right to the construction work of this case under relevant Acts and subordinate statutes is the Plaintiff, shall not be examined further.

3. Conclusion

Therefore, the defendant's non-management authority's rejection disposition against the plaintiff on November 7, 2007 against the non-management authority's designation disposition and the non-management authority's non-management authority's rejection disposition against the defendant on October 13, 2008 against the defendant's defendant's defendant should be revoked. Thus, the judgment of the court of first instance that dismissed the plaintiff's claim is unfair, and it is so decided as per Disposition.

Soldiers (Presiding Judge)

Degree of Nature

The presiding judge

South Sea Mineral

A person shall be appointed.

A person shall be appointed.

Related Acts and subordinate statutes

Administrative Procedures Act

Article 4 (Good Faith and Sincerity, and Protection of Trust)

(1) Each administrative agency shall perform its duties in good faith and sincerity.

Public Waters Reclamation Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

3. The term "Filling" means the adjustment (including reclamation in water area) of land by artificially inserting earth and sand, earth and other things into public waters.

Article 3 (Exclusion, etc. from Application)

(1) This Act shall apply mutatis mutandis to the following cases:

1. Construction of fisheries farms;

2. Establishment of shipbuilding facilities;

3. Construction of facilities for assistance use;

4. Construction of permanent establishment operated by subdividing public waters into parts.

Enforcement Decree of the Public Waters Reclamation Act

Article 37-4 (Small-Scale Reclamation Executed by the State, etc.)

(1) "Public or public use prescribed by Presidential Decree" in Article 38-2 (1) of the Act means the following:

4. Projects for constructing the outer facilities and mooring facilities (excluding facilities which flow seawater, such as grass and fin, etc.) under subparagraph 6 (a) of Article 2 of the Harbor Act;

Gu Public Waters Management Act (amended by Act No. 9773 of June 9, 2009)

Article 3 (Exclusion from Application)

This Act shall not apply to cases falling under any of the following subparagraphs:

3. Harbor facilities under subparagraph 6 of Article 2 of the Harbor Act and harbor facilities under subparagraph 5 of Article 2 of the Fishing Villages and Fishery Harbors Act;

Public Waters Management Regulations (Public Notice No. 2008-338 of July 23, 2008)

Article 3 (Scope of Application)

(4) The scope of structures that may be established on the sea or beaches pursuant to subparagraph 1 of Article 2 shall be those to which Article 37-4 (1) of the Enforcement Decree of the Public Waters Reclamation Act does not apply, and which fall under any of the following subparagraphs:

1. Structures scheduled to be restored to public waters because expenses for restoration to the original state are appropriated in design documents, etc. without accompanying land creation;

2. Where the building is a structure supported by columns, such as sculptures, or installed so as to allow passage through seawater;

3. In the case of structures installed below the full tide level line:

4. Structures established as restoration projects due to disaster-related damage.

Gu Harbor Act (wholly amended by Act No. 9773 of June 9, 2009)

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

6. The term "harbor facilities" means any of the following facilities inside a harbor zone and outside a harbor zone, which are designated and publicly notified by the Minister of Land, Transport and Maritime Affairs or a Mayor/Do Governor (hereinafter referred to as the "managing authority"):

(a) Basic facilities:

(1) A mooring facility 2) An area, such as a sea lane, anchorage electric current site, and the president of a ship; 3) An area, such as an external facility, such as a road, bridge, railroad fence, etc.; 4) a mooring facility, such as a water tank, a bridge, a landing facility for a stone-fin line, etc.

Article 9 (Implementers, etc. of Harbor Projects)

(6) If a managing authority directly executes a harbor project or grants a non-managing authority a permit for a harbor project, it shall give public notice thereof.

Article 43 (Designation of Harbor Hinterland Complexes)

(4) The Minister of Land, Transport and Maritime Affairs shall be the State pursuant to the proviso to Article 18 (1) as land created by a harbor project conducted by a non-management authority. The Minister of Land, Transport and Maritime Affairs shall, when he/she intends to designate all or part of the land not reverted to a local government as a harbor hinterland complex including in the harbor hinterland complex, formulate a plan to use the relevant land and a facility project plan

A landowner may, if deemed necessary for the smooth development and use of a harbor hinterland complex, request the Minister of National Land, Infrastructure and Transport to modify the development plan of a harbor hinterland complex.

Article 47 (Rights of Landowners)

(1) When a landowner implements a harbor project on the relevant land, he/she shall become a person who implements a harbor project that is implemented by a non-management authority with permission from the management authority under Article 9 (2).