(영문) 전주지방법원 2015.4.29. 선고 2014구합158 판결

1. The plaintiff and the defendant confirm that "the installation of a steering tower at the 43 open port" has the right to use "military port Nos. 1, 2, and 5 wharfs" and other harbor facilities owned by the defendant free of charge until the rent of 278,929,691 won.

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

Purport of claim

The same shall apply to the order.

Reasons

1. The developments leading up to the installation of the instant lighting tower;

A. The Plaintiff is a company with the purpose of port transport business and port facility maintenance management business, and the chief of the regional maritime affairs and fisheries office of the defendantsan-gun has overall control over the affairs of the former North Korea region, including the management of the military port and port.

B. Section 4 of the Militarysan Port is operated as an exclusive motor vehicle package. Around August 2005, the Plaintiff agreed with the chief of a regional maritime affairs and fisheries office of the Gunsan regional maritime affairs and fisheries office and the Plaintiff, as a non-management authority, to carry out packing works in the surrounding area of the 43th line of the 41 line of the 43 line of the 41 line of the 41 line of the 41 line of the 41 line of the 41 line of the 44th line of the 44th line of the 43 line of the 43 line of the 43 line of the 43 line of the 44th unit of the 40 line of the 4th unit of the 1st unit of the 4th unit of the 1st unit of the 4th unit of the 197 unit of the 1st unit

C. After that increase, the Plaintiff and the chief of the regional maritime affairs and fisheries office agreed to construct 42 lines for the non-management authority as a result of the increase in the volume of automobile export, and the Plaintiff started construction of 42 lines for the non-management authority on April 2008 and completed construction of 42 lines for the implementation plan on January 201. Since that time, the Plaintiff used 42 lines for free within the total project cost of the said construction work.

D. As the above 42 line was newly established, there is a need to secure an additional package box for an exported automobile. The Plaintiff and the chief of the regional maritime affairs and fisheries office of Gun and fisheries agreed to carry out packing construction as to the 44 main package box (67 lines) where the Plaintiff was left abandoned in the state of reclaimed land adjacent to the main package of this case as a non-management authority for the instant harbor construction. Accordingly, on August 18, 2010, the Plaintiff completed the packing construction at around January 27, 201 with the approval from the non-management authority and the implementation plan for the harbor construction from the chief of the regional maritime affairs and fisheries office of Gun and fisheries. The Plaintiff was using the above main package box without compensation within the total project cost of the above packing construction. While performing the above packing construction, the above field box is installed and used.

E. Following the increase in the export volume of automobiles, the chief of a regional maritime affairs and fisheries office and the Plaintiff agreed to construct two lighting towers at the instant camping site as a non-management authority for the instant camping site (hereinafter referred to as “instant lighting tower”). On May 201, the Plaintiff filed an application with the chief of a regional maritime affairs and fisheries office around 13, 201 for permission for implementation of the instant lighting tower. On March 5, 201, the implementation plan was approved by the chief of a regional maritime affairs and fisheries office around 13, 201, and the implementation plan was completed on March 14, 2012 after the completion of construction of lighting towers on March 14, 2012. On March 22, 2012, the Plaintiff applied for exemption from the total project cost to install the relevant lighting tower at KRW 278,929,691. The Plaintiff applied for exemption from the total project cost of KRW 30,450,000.

F. On October 18, 2013, the chief of a regional maritime affairs and fisheries office of the Gunsan issued a review of the Minister of Oceans and Fisheries to promptly change the instant lighting tower as a result of the regular inspection conducted by the Minister of Oceans and Fisheries in 2013, and on October 30, 2013, notified the Plaintiff that “The instant lighting tower belongs to the State as a supporting facility under Article 18(1)5 of the Enforcement Decree of the Harbor Act, because it constitutes a facility for business purposes, and thus, the instant lighting tower constitutes a facility for the management of the State, the Minister of Oceans and Fisheries issued a notice to the Plaintiff on October 30, 2013 that “the project expense amount of KRW 278,929,691 shall be reverted to the State, as the result of the instant regular inspection conducted by the Minister of Oceans and Fisheries in 2013.”

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 5 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

In the following sense, the instant lighting tower’s ownership belongs to the State, and the Plaintiff is entitled to enjoy a free use right as to the port Nos. 1, 2, and 5 wharfs within the scope of KRW 278,929,691, the total project cost associated with the instant lighting tower. The Defendant asserts otherwise that the instant lighting tower did not recognize the Plaintiff’s right of free use right on the premise that it is a support facility. Accordingly, the Plaintiff seeks confirmation against the Defendant by the instant lawsuit.

① The instant lighting tower constitutes a functional facility, which is a facility for cargo distribution and necessary for harbor to function as a harbor, and falls under a functional facility, which is an essential facility for the instant camping site itself to function as a port.

② Inasmuch as the instant lighting tower was in line with the camping site, which is a functional facility, its constituent part was owned by the instant lighting tower, the ownership of the instant lighting tower was reverted to the State in entirety with the camping site.

③ The chief of the regional maritime affairs and fisheries office of the instant lighting tower approved the permission and implementation plan for harbor works of the non-management authority of the instant lighting tower. After confirmation of completion, the notification of the total project cost becomes final and conclusive to grant the right of free use to the State of the instant lighting tower. This is a public opinion presented on the premise that the instant lighting tower reverts to the State, and the Plaintiff trusted without any cause. Based on such trust, the instant lighting tower was installed and used without compensation within the project cost. However, if the Defendant denies the ownership of the State of the instant lighting tower, the Plaintiff must remove the lighting tower without any need after the expiration of the period of use of the instant lighting tower, and thus, its property interest is infringed, and even if the ownership of the instant lighting tower belongs to the State, the Defendant cannot deny the ownership of the instant lighting tower to the State under the principle of trust protection.

B. Defendant’s assertion

① The lighting tower of this case was constructed after five years from 2006 where the camping site of this case was created, and it was not an essential facility to maintain the function of the camping site of this case, but constitutes a business-use facility established to facilitate the Plaintiff’s harbor transport operations and constitutes support facilities under the Harbor Act.

② It is difficult to deem the instant lighting tower as a suitable because it can be separated from the instant camping place, as well as that it has a large cost of separation and has an economic utility independent of the camping place.

③ The Defendant did not engage in any specific act corresponding thereto on the premise that the instant lighting tower reverts to the State. Since the public interest in the implementation of rule of law due to the non-Reversion of the instant lighting tower to the State is larger than the Plaintiff’s damage that would not be exempt from the usage fee, the instant lighting tower’s non-Reversion to the State is not contrary to the protection of trust.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination,

A. Article 2 Subparag. 5 (b) of the former Harbor Act (amended by Act No. 11371, Feb. 22, 2012; hereinafter the same) provides navigational aids, loading and unloading facilities, passenger convenience facilities, distribution facilities and sales facilities of goods, ship distribution facilities, harbor control facilities, sites for harbor facilities, etc. In such cases, Article 2 Subparag. 5 (c) of the same Act and Article 2 of the former Enforcement Rule of the Harbor Act (amended by Ordinance of the Ministry of Oceans and Fisheries (amended by Ordinance of the Ministry of Oceans and Fisheries, Mar. 24, 2013; hereinafter the same) provides support facilities such as assistive facilities, loading and unloading facilities, distribution facilities of goods, facilities for storing goods, etc., facilities for assembling goods, welfare facilities related to harbor related business for the provision of public services, facilities for providing convenience, research facilities for developing technology for harbor-related industries, research facilities for harbor transport business operators, etc.

In comparison with the facilities listed in each of the above provisions, the Harbor Act mainly sets out facilities, the main function of which is the entry of a harbor, namely, the entry of a ship, the embarkation and disembarkation of a person, the loading and unloading of cargo, and the handling and handling of cargo, as functional facilities, and sets up facilities to indirectly and indirectly support the essential functions of a harbor as supporting facilities.

B. In addition, the main text of Article 15(1) of the former Harbor Act provides that “the land and harbor facilities developed or installed by a non-management authority’s harbor works shall belong to the State upon completion of construction.” The proviso of the same Article and Article 18(1) of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same) stipulate the loading and unloading facilities and weight measurement facilities, private days, oil storage facilities and auction facilities, and convenience-raising facilities among pollution prevention facilities. Accordingly, in principle, the functions of the harbor facilities created by a non-management authority’s harbor works shall belong to the State, and support facilities shall not belong to the State.

C. In full view of the following circumstances recognized in light of the provisions of the Harbor Act and the circumstances surrounding the installation of the instant lighting tower, the instant lighting tower shall be deemed as a functional facility, not a support facility under the Harbor Act.

1) The camping site is a place where cargo using a harbor is kept for a certain period prior to shipping the cargo or out of the harbor. The camping site of this case is used as a storage place for the freight using 42 lines, an exclusive trucking line. The lighting tower of this case is an essential facility to prevent safety accidents when loading the cargo at night, or shipping the cargo out of the camping site of this case, and works carried out at night in light of the public nature and utility of harbor facilities. The lighting tower of this case is also for the function of the harbor, as in daytime, as well as works carried out for the function of the harbor. Thus, the lighting tower of this case constitutes a facility for the purpose of storing and distributing the cargo, which is its essential function.

2) Although the Plaintiff did not install a lighting tower at the time of the instant field packing work, if it was necessary to conduct night work in the instant field due to an increase in the volume of car exports, the instant lighting tower was installed. However, the non-management authority’s installation of port facilities is due to the fact that the non-management authority directly or indirectly benefits the non-management authority. The criteria for determining the nature of port facilities installed by the non-management authority should be not whether the “meters in which the pertinent facilities were installed is a private necessity of the non-management authority, but not whether the “the function of performing the pertinent facilities” is the essential function of the port. As seen earlier, the intrinsic function of the instant lighting tower is related to the storage and distribution of freight.

3) The Defendant recognized that the Plaintiff’s right to the lighting tower installed together in the course of carrying out the packing of the hinterland 44 lines belongs to the State. The rest of the lighting tower in the military port other than the lighting tower in this case is owned by the State. However, it is difficult to find reasonable grounds to regard the lighting tower in this case, which performs the same function, differently depending on whether the time of installation is after the time of the packing of the instant place.

4) In addition to the instant lighting towers, the Plaintiff, a non-management authority in the Gunsan Port, carried out construction works for packing and 42 lines of the instant camping site, and these facilities were reverted to the State as the basic facilities and functions of the port. The instant lighting tower seems to be significantly different from its intrinsic functions.

5) The defendant alleged that the lighting tower of this case constitutes "harbor-related office facilities for facility management, etc." under Article 2 subparagraph 5 (c) (4) of the former Harbor Act or "harbor-related business facilities" under Article 2 subparagraph 7 of the former Enforcement Rule of the Harbor Act, and "harbor transport-related business facilities" under Article 2 subparagraph 1 of the former Enforcement Rule of the Harbor Act. However, the lighting tower of this case is "facilities for the essential functions of harbors" rather than "facilities for the management of harbor facilities" as mentioned above, and it is not determined that the business facilities of a person who operates a harbor-related business mean facilities for the welfare or convenience of a person who operates a harbor-related business, and it does not mean facilities installed by a person who operates a harbor-related

D. Therefore, the ownership of the lighting tower of this case shall be reverted to the defendant without any need to examine the remaining arguments of the plaintiff. The facts that the total project cost of the lighting tower of this case was 278,929,691 does not conflict between the parties. Thus, the plaintiff is entitled to gratuitously use the "military port 1, 2, and 5 wharf" and other harbor facilities owned by the defendant until the rent of 278,929,691 according to the construction of the lighting tower of this case is 278,929,691, and the plaintiff does not recognize the right to gratuitously use the above, on the premise that the lighting tower of this case does not belong to the State. Thus, the plaintiff is also entitled to seek confirmation as to the above right

5. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.