2011Nu2087 Revocation of revocation of revocation of application for permission

Han Young Industrial Co., Ltd.

Head of Mapo regional Maritime Affairs and Port Office

Gwangju District Court Decision 2011Guhap2088 Decided November 24, 2011

December 20, 2012

January 24, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of rejection of the application for permission for execution of harbor works made on March 14, 201 by the non-management authority shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

○ The Plaintiff established and promoted a business plan with the content of assembling and producing ship blue block and plant cargo, etc. in a wooden harbor.

○ On August 20, 2010, the Simpo Port Co., Ltd. (hereinafter referred to as the "Simpo Port Co., Ltd.") requested the Minister of Land, Transport and Maritime Affairs to approve the implementation of the "harbor equipment improvement plan and other minor profitability projects for the efficient disposal of plant cargo" with the Plaintiff as the business owner, and the Minister of Land, Transport and Maritime Affairs, on September 27, 2010, with respect to the multi-purpose port site (hereinafter referred to as the "harbor site of this case") located in the Simpo Port Co., Ltd. (hereinafter referred to as the "Gumpo Port site of this case"), the area used is 34,200 square meters, annual rent is 248,000,000 won, and the period of use is 2016, respectively, and the Defendant submitted opinions to the Minister of Land, Transport and Maritime Affairs on August 31, 2010 that there is no particular problem in the operation of the harbor even if the implementation of the above project is approved.

Accordingly, on September 28, 2010, the Plaintiff purchased 6,250,000,000 won in total from 1330 to 15,000,000 square meters, and 34,919.2 meters (hereinafter referred to as “the rear site of this case”) of the area of 1330 to 13,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

On October 25, 2010, the Plaintiff and the Defendant, Mapo-si, and Mapo-si (ju) concluded an investment agreement with the effect that “the Plaintiff shall make an investment of total of 36 billion won in total, including the construction of Mebbles, alleys, and offshore plant in the instant harbor site and its hinterlands, and that “the Defendant, Mapo-si, and Mapo-si (ju) will make every effort to provide administrative and financial support for the Plaintiff’s successful investment.”

After ○, on February 8, 2011, the Plaintiff filed an application with the Defendant for permission to implement harbor works with a non-management authority (hereinafter referred to as “application for permission to implement the instant harbor works”) to assemble and produce vessel block, plant cargo, etc. on the instant harbor site, but the Defendant rejected the application for permission on March 14, 201 for the following reasons.

The reason for disposal - The vicinity of the construction area for the installation of a Bapo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo

○ In addition, the Plaintiff filed an application for a construction permit for the construction of a new factory to assemble blue, etc. on the rear site of this case on March 14, 2011. However, on April 18, 2011, the Plaintiff rejected the application for a construction permit on the sole ground that the glusium generated within the factory would cause damage to a motor vehicle for the export of a nearby Abandoned Motor Co., Ltd. (hereinafter referred to as “Abandoned Motor”), a company located in the vicinity of the factory (hereinafter referred to as “Abandoned Motor”) by a dust generated within the factory. [Grounds for recognition] The Plaintiff did not dispute, and the purport of the entire arguments and arguments set forth in subparagraphs A through 10, and 16 (including

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) The permission of the non-management authority to implement a harbor project is a binding act by the administrative authority. Since the plaintiff's permission for the harbor project of this case meets all the requirements for permission under Article 9 (3) of the Harbor Act, such as complying with the third basic harbor plan, it is unlawful for the defendant to take the disposition of this case despite its duty to permit the application for permission for the harbor project of this case.

(2) Since the Minister of Land, Transport and Maritime Affairs already approved that the Plaintiff can assemble large steel structure, such as ideas, melting, painting, etc. in the instant harbor site, the Plaintiff’s aforementioned work is permissible under the Harbor Act. The Plaintiff’s application for permission for the instant harbor project was changed to allow the Plaintiff to install a franchiseer in the instant harbor site. However, the Defendant’s disposition was unlawful on the ground that the Plaintiff, not the dust generated in the process of installing a franchiseer in the instant harbor site, was done on the ground of the dust generated in the process of construction of a franchiseer in the instant harbor site, not on the instant harbor site.

(3) A deviation or abuse of discretionary authority

Even if the non-management authority's permission to implement a harbor project falls under discretionary action, ① the vessel block and plant cargo assembly and manufacture have been conducted during the period, there have been no cases of environmental pollution damage caused by dust, etc., the Plaintiff sufficiently established measures to prevent dust damage to an automobile for export of an automobile located in the vicinity of the port site of this case, the Plaintiff's business of installing vessel block and plant cargo treatment facilities is expected to be helpful for the revitalization of wood bage ports and regional economy. If the application for the permission of this case is rejected, the Plaintiff is expected to incur considerable financial loss, including the cost of investment, while the public interest to be achieved through the disposition of this case is not significant, the disposition of this case is in violation of the principle of proportionality and the principle of proportionality, ② the Plaintiff's application for permission for permission of this case is against the principle of equality and against the principle of equality, and thus, it is against the principle of equal discretion in the construction of cement plant of this case.

(4) On September 27, 2010, the Minister of Land, Transport and Maritime Affairs in violation of the principle of trust protection approved the implementation of "other minor profitability projects related to improvement measures for the efficient disposal of plant cargo" applied by the Plaintiff as the business owner, and the Defendant submitted opinions to the Minister of Land, Transport and Maritime Affairs that there is no problem in the operation of the harbor even if he approves the above project, and entered into an investment agreement with the Plaintiff on October 25, 2010. This constitutes an expression of public opinion by the Defendant, and the Plaintiff trusted this and took follow-up measures in accordance with the above project implementation approval and the investment agreement. However, the Defendant’s disposal contrary to the above opinion is contrary to the principle of trust protection.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

(1) The current status, etc. of use of wooden harbors

○ The 5 lines are being operated for a total of 5 lines, such as 1st, 3st, and 1st, reticulate, and 1st, and the site for the port of this case where the Plaintiff wishes to install a tamper is located within the crdum.

It is known that the 16% of the total water capacity in the wooden port as of 2010, and the 76% of the water capacity in the wooden port as of the 2010, the number of people engaged in the related industries is 15,720, and there is a regional economic inducement effect of 10.3 billion won per year by the month of 15,720.

(b) Civil petition systems, such as cryp vehicles;

○ The Plaintiff promoted the construction project of vessel blus and plant cargo treatment facilities in the instant port site and hinterland sites. As a result, it is feared that the Plaintiff would inflict damage on the Defendant for an automobile for export waiting in the nearby financial flusium by metal and flusium generated at the instant port site. If the Defendant grants permission for the application for permission of the instant harbor works, he/she has expressed his/her opinion that he/she should actively review the transfer of the port of departure from the port of departure from the instant port site, and the collaborative companies also filed a civil petition

○ Accordingly, on November 1, 2010, the Defendant demanded the Plaintiff to establish measures to prevent dust damage according to the plan to install Grand Cargo Treatment Facilities.

(3) Holding meetings to take measures to prevent decentralization, etc.

○ On December 20, 2010, the Defendant held a meeting for the prevention of dust damage when installing the first new plant cargo treatment facilities, and the Plaintiff presented a plan for the prevention of dust damage that was self-established to an infant automobile subcontractor, etc. attending the above meeting at that place.

Then, on January 12, 2011, the defendant held a meeting for the prevention of dust damage when installing the second new plant cargo treatment facilities, and the plaintiff explained the plan for prevention of dust damage to Jeonnam-do, Manpo City, Mapo-si, Mapo-si, etc. attending the above meeting at that place, and again explained the plan for prevention of dust damage to Jeonnam-do, Mapo-si, Mapo-si, etc. and then made it necessary

(4) The measures to prevent dust damage by process submitted by the Plaintiff along with the application for permission for the instant harbor works are as follows.

A person shall be appointed.

(5) Cases, etc. of dust damage under woodbling ports and other ports

○ The fiscal brea car, which is used as the shipment site of the vehicle for export, is located around 600 meters from the port site of this case.

nine companies, including Samsung Heavy Industries, have dealt with large steel structure such as processing or assembling hull jus, etc. at a wooden port wharf from May 2005 to September 2010, and there is no reported fact that there was damage on a motor vehicle for export of a child in neighboring areas due to dust generated in the process.

○ In addition, around August 2008, cement Cement Co., Ltd. is operating cement factories on the side of the financial hub used by the Defendant with the permission of the non-management authority for the construction of cement dedicated structure with regard to the construction of cement dedicated structure from the Defendant, and there was no yet reported that there was damage to the motor vehicle for export in the above financial hub due to the dust generated from the dust.

On the other hand, A made vessel bub, etc. at the luminous port wharf on July 2008 and caused an accident that affected the surface of a motor vehicle for export to approximately 3,000 U.S., which had been waiting at the adjacent port of loading stations around July 208.

(6) According to the amendment plan of the second basic harbor plan formulated on December 2, 2006, the second basic harbor plan was planned to be installed along with the instant harbor site. (1) At present, the installation of the automobile wharf was scheduled in connection with the instant harbor site, adjacent to the instant harbor site, and the construction of the automobile wharf was commenced around 2011 and completed around 2015.

[Ground of recognition] In without dispute, Gap evidence Nos. 4, 5, 11, 13, 14, 17, Eul evidence Nos. 15 and 18, Eul evidence Nos. 2, Eul evidence Nos. 3-1, 2, Eul evidence Nos. 6, Eul evidence Nos. 7-1 and Eul evidence Nos. 7-8, each fact inquiry results on Korean International Terminal Corporation and Matern Motor Corporation, and the fact inquiry results of this court's on-site inspection results and the whole purport of arguments, judgment;

(1) The issue of whether a non-management authority's permission to implement a harbor project's legal nature is a binding act or discretionary act cannot be uniformly defined, and it should be individually determined in accordance with the form, system, or language of the provision on the basis of the pertinent disposition. According to the provisions of Article 9 (3) of the Harbor Act, the non-management authority's permission to implement a harbor project is an administrative act that basically grants a specific person a right or a benefit, and the requirements for permission under the subparagraphs of the above Article are also an administrative act that grants a specific person a right or a benefit, and the requirements for permission under the subparagraphs of the above Article 9 (3) of the Harbor Act are not uniformly determined and thus, the decision on whether to grant a non-management authority's permission to implement the harbor project of this case belongs to an administrative agency's discretionary act.

(2) Whether the process of examining the permission of the instant harbor works can be used as a ground for disposing of the earthquake damage.

The following circumstances, which are acknowledged by the above-mentioned statutes and evidence Nos. 4 and 5, that are, the owner of a wooden harbor shall obtain the above approval from the Minister of Land, Transport and Maritime Affairs pursuant to Article 14 (4) and 14 (3) of the Act on Public-Private Partnerships in Infrastructure and the concession agreement with the competent authority when designating the concessionaire of the public-private partnership project, the owner of a wooden harbor, which is the executor of the public-private partnership project, shall obtain the approval from the competent authority. The above project approval is not a project approved by the Minister of Land, Transport and Maritime Affairs when designating the concessionaire of the public-private partnership project. The purpose of the above project approval is to examine whether the owner of a wooden harbor, which is not a project approved by the Minister of Land, Transport and Maritime Affairs, is to promote the development of the 1st harbor project for the purpose of establishing and managing the 3th harbor project for the purpose of using the 4th harbor project for the installation and management of the 1st harbor project for the purpose of the 3th harbor project.

(3) Whether the discretionary authority is deviates or abused or not

(A) In the case of discretionary act, the court shall examine only whether the pertinent act is deviation or abuse of discretion without drawing a reader’s conclusion, taking into account the room for determining the public interest based on the discretion of the administrative agency. The examination of such deviation or abuse of discretion is subject to the determination of facts, violation of the principle of proportionality and equality, etc. (see, e.g., Supreme Court Decision 2010Du21204, Dec. 23, 2010).

(B) With respect to the instant case, even if it is not possible for the Plaintiff to trust the service report submitted by the Defendant to the professor Team of the Sinpo University B, the Plaintiff’s operation of installing the Sinpo University in the instant port site is likely to cause metal and paint dusts, accompanied by melting, thought, and painting, and there is no possibility that metal and paint dusts generated in the course of outdoor work may cause damage to the surrounding areas, as well as that there is no possibility that the metal and paint dusts generated in the course of outdoor work may cause damage to the Republic of Korea.

In light of the fact that it is difficult to readily conclude that measures to prevent dust damage can be fundamentally prevented, and the fact that there is an accident that causes metal and paints generated in the process of manufacturing vessel juths, etc. on a closed port wharf, which pollutes the surface of an automobile for export that had been going into the air at that port, it is difficult to see that the Defendant’s disposal is merely a remote concern without any concerns over dust damage to an automobile for export, which is used as the reason for disposal. In light of the fact that it is difficult to conclude that the Plaintiff carries on a large-scale steel structure and vessel just manufacturing business in the port site of this case, it is difficult to avoid the intention to transfer the export loading port of this case to the Plaintiff, and that it is difficult to consider the fact that the second amendment plan of the basic harbor plan and the third basic harbor plan were formulated on December 27, 200, which would inevitably affect the national economy and that it is difficult for the Plaintiff to take into account the fact that the Plaintiff would have been in violation of the basic harbor plan and the third basic harbor plan.

(4) Whether the principle of trust protection is violated

(A) In order to apply the principle of trust protection to the actions of an administrative agency in general in administrative legal relations, first, the administrative agency shall be trusted to the individual.

The name of a public opinion shall be the name of the administrative agency, and the second opinion shall not be attributable to the individual in respect of the trust in the name of the administrative agency that the name of the opinion shall be justified, and the third individual shall trust the opinion name and engage in any act corresponding thereto. Fourth, by the administrative agency's disposition contrary to the above opinion name, the interests of the individual who trusted the opinion name shall be infringed. Fifth, if an administrative disposition is taken in accordance with the previous opinion name, it shall not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

(B) With respect to the instant case, the Minister of Land, Transport and Maritime Affairs approved the implementation of the Investment Agreement with the Minister of Land, Transport and Maritime Affairs's request for the improvement plan of the harbor equipment and other minor profitability projects for the efficient disposal of franchising cargo, and even if the Defendant approved the said project to the Minister of Land, Transport and Maritime Affairs, he/she has presented opinions that there is no particular problem in the operation of the harbor. The fact that the Defendant entered into an investment agreement with the Plaintiff, etc. to the effect that it would make every effort to provide administrative and financial support with the Plaintiff, etc. for the successful investment of the Plaintiff's business is recognized as above, but it is recognized as follows based on the overall purport of the statements and arguments as stated in the evidence No. 5, No. 9-1, and No. 16, and the above approval by the Minister of Land, Transport and Maritime Affairs, which is merely an approval granted to the franchising port to operate the harbor construction project against the Plaintiff.

In full view of the fact that the defendant's opinion on the review is only an internal opinion submitted to the Minister of Land, Transport and Maritime Affairs as to whether to grant approval for the above rental business, and that the above investment agreement is merely an agreement that the defendant would make the plaintiff's successful investment together with the plaintiff, Pospo, and Pospo, and that it is not legally binding to grant permission for the harbor project of this case, it is difficult to recognize that the Minister of Land, Transport and Maritime Affairs or the defendant's above act has expressed a public opinion that the plaintiff would permit the harbor project of this case. Furthermore, when granting permission for the harbor project of this case, it is expected that it would have a significant adverse effect on the Pospo Port and the regional economy as seen above, and that the above public interest would be more severe than the plaintiff's loss due to the disposition of this case, the plaintiff's assertion that the above disposition of this case would not significantly undermine the public interest of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

The presiding judge, senior judge and assistant judge

Judges Cho Jae-ho

Judges Namnam Sea

1) The third basic harbor plan formulated on July 29, 201 also reflected the same plan in the national basic harbor plan.

2) The Plaintiff applied for and withdrawn the appraisal of the anticipated dust damage due to the assembly and production of plant cargo, etc. in the instant harbor site in the trial.

A person shall be appointed.

A person shall be appointed.