(영문) 수원지방법원 2011.6.22.선고 2010구합16081 판결

The defendant's disposition of return of the application for permission to use harbor facilities filed by the plaintiff on April 9, 2009 shall be revoked.

Reasons

1. Details of the disposition;

A. Around March 207, the Plaintiff registered the shipping agency business related to the entry into and departure from the port of entry into and departure from the port of Pyeongtaek Customs Office as a corporation selling sand collected or extracted from the sea, etc.

B. On May 2007, the Plaintiff filed an application with the Defendant for permission to use harbor facilities to load and unload sand at a wharf located in C (hereinafter “the instant wharf”) on five occasions around September 2008, around September 2008, and around October 3, but the Defendant rejected all of the applications filed by the Plaintiff. On March 31, 2009, the Plaintiff filed an application with the Defendant for permission to use harbor facilities within the public area of the instant wharf, including 108 meters of container office, 72 square meters of the truck’s wheels, and the period of use, including the installation of a 72 square meters of the truck’s wheels, on April 20, 2009 to January 31, 2011 (the date of completion of the new wharf).

D. Accordingly, on April 9, 2009, the Defendant returned the Plaintiff’s application on the ground that the instant wharf was operated for a temporary period until the completion of the d bank, and it is impossible to grant permission for the diversion of harbor facilities, except at the request of the related agencies with respect to the supply and demand of sand required for the military base relocation project, etc. However, since it is possible to use only a permanent removal from the port due to the direct removal from the port in accordance with the procedures for reporting the entry into and departure from the port (POTRT-MS). Thus, the Plaintiff’s application cannot be installed (hereinafter “instant disposition”).

Grounds for Recognition: Facts without dispute, Gap evidence Nos. 3, 5, 4, 6, 7, Eul evidence No. 1 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Although three wheelss should be installed in relation to the occurrence of scattering dust, direct removal according to the procedures for reporting entry into and departure from ports can be made. Thus, the instant wharfs cannot be used without installing simple facilities, such as a three-wheeled, and the use of the instant wharfs cannot be denied on the ground of a plan for the development of a DNA embankment. The instant disposition that allowed the use of the instant wharfs only in relation to the military base moving business and rejected other than the instant disposition violates the provisions related to the Harbor Act.

(2) Permission granted to an existing business operator for the use of the instant wharf that does not grant permission to the Plaintiff violates the principle of equality.

(3) On September 2008, E, an employee of the Defendant, promised to grant permission to the Plaintiff when he/she applied for permission for use of harbor facilities since he/she returned the front cover of the FF corporation to the Plaintiff. On or around the 23th of the same month, E, a defect in the application for permission for use of harbor facilities, made a verbal promise to allow the Plaintiff to use within the deadline, and thus, the instant disposition that rejected the Plaintiff’s application is in violation of the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) The assertion that the provisions related to the Harbor Act are violated

According to Articles 30(2) and 92(1) of the Harbor Act, the managing authority of port facilities shall grant permission for the use of harbor facilities unless it interferes with the development plan, management, and operation of the harbor. As such, the competent managing authority shall have the right to examine whether the application for permission for use of harbor facilities interferes with the development plan, management, and operation of the harbor. In light of the unique characteristics of port facilities, such as the fact that the development plan of a harbor is formulated in the long term, and the type of the harbor, the link with the surrounding area, etc. should be considered, the determination shall be respected so long as there is an obvious violation of laws and regulations,

According to the overall purport of the statements and arguments in Section B and Section B, the total size of the wharf of this case is 71,466 meters. The State uses 16,982 meters among them, F Co., Ltd., G Co., Ltd., and H Co., Ltd. (hereinafter referred to as “existing Co., Ltd.”) uses 43,725§³, the remainder of 10,759§³ is public use area. The existing Co., Ltd. used the first half of 1994 as sand wharf and the second half of 194, but the existing Co., Ltd. used the first half of 1994 as sand wharf and the second half of 194, the existing Co., Ltd., Ltd., and the existing Co., Ltd., Ltd., and the existing Co., Ltd., Ltd., to develop the first half of 194. The existing Co., Ltd., Ltd., established the guaranteed insurance policy and the existing structure within 201.

Furthermore, Article 43(1) of the Clean Air Conservation Act, Article 44(1)6 of the Enforcement Decree of the same Act, and Article 58(4) [Attachment 14] of the Enforcement Rule of the same Act provide that transport vehicles shall operate three wheeledles and after killing and unloading on the wharf of this case. Thus, in order for the Plaintiff to perform sand loading and unloading work on the wharf of this case, it is essential to install three wheeledles and ancillary facilities. In most existing companies are using the wharf of this case. If the Plaintiff permits the use of harbor facilities for the installation of five wheeledles, etc. because the area of public use is narrow, it is difficult for the Plaintiff to play a role as the public wharf, and it is necessary for the Defendant to secure the public area of the wharf of this case in preparation for sand supply and demand required for the military base moving business, etc., so it seems that there is no space for the Plaintiff to install the wharf of this case, and if the Plaintiff did not take measures such as securing the loading and unloading space, the Plaintiff’s application for permission to use of the harbor facilities of this case can not be rejected.

(2) The assertion that it violates the principle of equality.

As seen earlier, since the existing company could not close the I-Japan sand wharfs and camping stations already used due to the construction works in 194, it is not possible for the existing company to temporarily use the instant wharf under the agreement with the Defendant for the protection of vested rights, and therefore, it is difficult to deem that there was a discrimination against the Plaintiff and the existing company without reasonable grounds on the ground that the Defendant did not grant permission for the use of harbor facilities to the Plaintiff who intends to newly load and unload sand at the instant wharf. Accordingly, the Plaintiff’s aforementioned assertion is without merit.

(3) The assertion that the principle of trust protection is violated

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of administrative agencies, first, the administrative agency should name the public opinion that is the object of trust to the individual, second, when the opinion list of the administrative agency is justified and trusted, there is no cause attributable to the individual, third, the individual should have trusted the opinion list, and should have engaged in any act based on it. Fourth, by the administrative agency's disposition contrary to the above opinion list, the interest of the individual who trusted the opinion list should be infringed.

As to the Plaintiff, the Defendant’s employee E expressed his public opinion that he would give permission to use the wharf of this case to the Plaintiff, the mere statement of No. 8-4 is insufficient, and there is no other evidence to acknowledge this. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion, the disposition of this case is legitimate, and the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.