2016Guhap62406 Revocation of Disposition of Non-permission to use port facilities

[Plaintiff-Appellant]

Regional Maritime Affairs and Fisheries Office

September 6, 2016

October 11, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 7, 2016, the decision that the defendant revoked the non-permission of the use of harbor facilities against the plaintiff.

1. Details of the disposition;

A. The Plaintiff is a corporation whose business purpose is loading, unloading, transporting, storing, and warehousing marine cargo.

B. On February 28, 2014, the Plaintiff obtained from the Defendant the first (the first) permission for the exclusive use of harbor facilities with the content of 9-14, 9-17, 13,024.54 located in Pyeongtaek-si, Pyeongtaek-si, a port site, for the purpose of using 35,330,170, and 300 meters of office office 11,924.54 square meters in the open site, 800 meters in the use of the site: the said permission for the use of the exclusive use of harbor facilities with the content of 35,330,170, and the period of use of the exclusive use of harbor facilities with the content of 9-14, 9-17, and 13,024.54 (hereinafter referred to as “instant site”). The said permission for the use of harbor facilities stated the following:

2. The person subject to general conditions of permission shall be prohibited from allowing any other person to use permitted harbor facilities. On November, 11, this permission is revoked, or the use of permitted facilities is suspended, the conditions of permission are altered, the method of use is improved (location), or other necessary measures are taken, and no damage shall be compensated even if the person subject to permission suffers damage due to the cancellation of permission due to the violation of relevant Acts and subordinate statutes and conditions of permission, etc.

C. On February 27, 2015, the Plaintiff obtained permission to use the instant site from the Defendant for exclusive use of harbor facilities (extension) with the content that the use fee of KRW 35,435,160 and the use period of KRW 35,435,160 was set from March 1, 2015 to February 28, 2016.

D. After January 13, 2016, the Defendant notified the Plaintiff on January 13, 2016 that the permission period for the use of harbor facilities expires on February 28, 2016, and that if the Defendant wishes to extend the use, it shall submit an application for the extension of the use of harbor facilities to the Plaintiff by no later than 15 days prior to

E. On February 18, 2016, the Plaintiff filed an application with the Defendant for permission for exclusive use of harbor facilities (hereinafter “instant application”) with the purport of extending the period of use of exclusive use permission for the instant site from March 1, 2016 to February 28, 2017 (hereinafter “instant application”).

F. On March 7, 2016, the Defendant notified the Plaintiff of the refusal of the instant application pursuant to Article 30 of the Harbor Act and Article 3 of the Regulations on the Use of and Rent for Port Facilities, including Trade Port, etc. (hereinafter “instant disposition”).

No. 5 of the application for permission for use of harbor facilities (No. 5) continues to be in a state with no record of utilization, such as there is no record of handling coastal cargo since 2014, which the Plaintiff operated the site of this case (hereinafter referred to as "reasons for disposition"), and the area at ○○ is expected to have a limitation to creating water dynamics under the conditions of the operation of the wharf disadvantageous to the vessel because it is difficult to secure the depth due to a big relation between the low-water and the low-water vehicle in the area concerned (hereinafter referred to as "reasons for disposition"), and the ○○ Defendant's permission for the application of this case in the course of formulating a plan to use the land linked to the original rearrangement-friendly park completed in December 2015 with the original rearrangement-friendly park (hereinafter referred to as "third ground for disposition").

[Ground of recognition] The fact that there is no dispute, entry of Gap's 1 through 5, purport of whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As to the legal nature of the instant disposition

Article 30(3) of the Harbor Act provides that permission shall be granted if the legal requirements are met. Thus, the instant disposition constitutes a binding act, and in determining whether there is an obstacle to the development plan, management, and operation of the harbor in the harbor, the granting of discretion to consider the public interest to the defendant, even if there is a limit of the binding discretion that should not be arbitrarily determined.

2) Claim as to the non-existence of the disposition grounds

(1) From 2014 to 2014, the Plaintiff’s cargo transport volume decreased due to the subsidence of the domestic construction competition. Rather, the Plaintiff has continuously developed the marine transport around the instant site even in such circumstances. ② The disposal ground is the general phenomenon on the coast of the west Sea. The disposal ground is merely an uncertain development plan, taking into account the following: ① the disposal ground does not exist; ② the disposal ground does not constitute a legitimate disposition ground on the grounds that does not relate to the development plan and management and operation of the “harbor” under Article 30(3) of the Harbor Act, and ③ the disposal ground goes beyond the speed of binding power prescribed by the law on the uncertain future facts, or exceeds the limit of discretionary discretion. Accordingly, the Defendant’s disposition against the Plaintiff on this premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

When an administrative act is classified into the so-called binding act, discretionary act, discretionary act, or discretionary or discretionary act with regard to the existence and scope of discretion, the division shall be determined by considering all the forms and language of the pertinent law and regulations based on which the pertinent act is based, the main purpose and characteristics of the administrative sector to which the pertinent act belongs, the individual nature and type of the pertinent act itself, etc. (see Supreme Court Decision 98Du17593, Feb. 9, 2001). Meanwhile, Article 30(1) of the Harbor Act provides that a person who intends to use harbor facilities may use harbor facilities with permission from the Minister of Oceans and Fisheries as prescribed by Presidential Decree, and Article 30(3) provides that where the Minister of Oceans and Fisheries receives an application for permission for the use of harbor facilities under paragraph (1), he/she shall grant permission unless

Examining the provisions of the above relevant Acts and subordinate statutes on the premise of the above legal principles, a person who intends to use harbor facilities must obtain permission for use of harbor facilities, and permission for use of harbor facilities is an act of establishing a specific person's right, and an administrative agency may decide whether to grant permission in consideration of the development plan, management and operation of the harbor, and it is reasonable to deem that the legal nature of permission for use of harbor facilities belongs to the discretionary act of the administrative agency, and the examination of whether it is illegal is subject to deviation or abuse of discretionary power, and

2) Judgment on the second argument

In the case of the so-called binding act or the so-called act of discretionary discretion, the court shall draw a certain conclusion through the application of fact-finding and the interpretation of the relevant laws and regulations due to the bound nature of the relevant laws and regulations, and then determine the legitimacy of the judgment made by the administrative agency in light of the conclusion thereof from the reader’s position. However, in the case of discretionary act or the act of discretionary discretion, the court shall, without drawing the reader’s conclusion, examine only whether the pertinent act is a deviation or abuse of discretionary power without drawing the reader’s conclusion, and the examination of whether such discretionary power deviates or abuse is subject to such determination (see Supreme Court Decision 98Du17593, Feb. 9, 201).

According to the overall purport of the statements and arguments in Eul, Eul evidence Nos. 1 through 4 (including paper numbers) and the whole purport of the arguments, there is no transport record between January 2014 and December 2014 of the original rearrangement book where the site of this case is located, and there is no transport record between January 2014 and December 2014; for the period from January 2015 to December 2015, the total sum of 125ton ( = 49Ton + 76Ton) of petroleum refining products (domestic vessel) and the total sum of 125ton ( = 49Ton) of chemical industry products (domestic vessel) and 76Ton; for reasons that there is no transport record of cargo from January 2016 to March 2016, the plaintiff's site of this case is left abandoned without actual utilization for a considerable period of time; for reasons that there is no operation record of the original rearrangement book adjacent to the adjacent facilities of the original rearrangement book, the defendant is 7 meters of the main park where Q is located.

The following circumstances revealed according to the above facts-related statutes and the above evidence, i.e., ① the defendant can consider the development plan, management, and operation plan of the harbor in order to facilitate, manage, and operate the harbor and its surrounding areas in the dispositions of this case (Article 1 of the Harbor Act), and there are lots of cargo transport records from 2014 to 2016 of the 2016 of the Korea War Mediation and Management Department, and the site of this case is left neglected without actual utilization for a considerable period. The above circumstances and the conditions of permission for exclusive use of harbor facilities are considered as follows: (i) the defendant's use plan to manage and operate the site of this case in connection with the KAF for the promotion of the development and efficient management and operation of the harbor; (ii) the plaintiff's trust interest in this case seems to be significant; and (iii) the defendant's use plan to manage and operate the site of this case can only be considered as having been made within the scope of the defendant's discretionary power; and (iv) there are no reasonable grounds for the plaintiff's disposition of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the rank of the judge;

Judges Park So-young

Judges' heavy defects

1) It refers to a space for loading and unloading with a certain width parallel to the inner wall abutting on the inner wall of the wharf where the ship is landing.

2) Structures constructed vertically on the seabed where the loading and unloading of cargo and passengers get on and off are directly undertaken by the landing of the vessel and collectively refer to the appurtenances to be landing the vessel, and a kind of wall and its appurtenances with sufficient length to the vessel in question.

A person shall be appointed.

A person shall be appointed.