2011Guhap2088 Disposition of revocation of revocation of application for permission

Han Young Industrial Co., Ltd.

Head of Mapo regional Maritime Affairs and Port Office

October 27, 2011

November 2011, 24

1. The Defendant’s disposition of rejection of an application for permission to implement harbor works filed by the non-management authority on March 14, 2011 is revoked.

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

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 Sinpo Port Co., Ltd. (hereinafter referred to as the “Sinpo Port Co., Ltd.”) requested the Ministry of Land, Transport and Maritime Affairs to approve the implementation of the ‘harbor equipment improvement plan and other minor profitability project for the efficient disposal of plant cargo' with the Plaintiff as the business owner. Accordingly, on September 27, 2010, the Ministry of Land, Transport and Maritime Affairs set the area of the multi-purpose port site (hereinafter referred to as the “instant harbor site”) 34,200 meters in the area of the use, rent of KRW 248,00,000 in each year, and period of use of KRW 20,000 in each year by 2016.

Accordingly, on September 28, 2010, the Plaintiff purchased a total of 34,919.2m (hereinafter referred to as “the rear side of the instant case”) from 1330-15, and 13,000,000,000,000,000,000,000 from the land behind the land behind the Sinpo harbor, and entered into a contract for the use of the port site and harbor facilities between 10,20,000,000,000,000,000,000,000,000.

○ and 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 KRW 36 billion in total, including the construction of Mebble block, Alleys, and offshore plant in the instant harbor site and its hinterland site, 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 vicinity of the construction area for the installation of a disposal reason, a new port (c) port (c) port is scheduled to start in 2011 as a motor vehicle section on the port master plan, and the new port (c) port (frib) is dealing with export vehicles located far away from approximately 600 meters of the planned site for the implementation of the project. In this regard, an exporting motor vehicle owner is anticipated to have an impact on the development plan of the motor vehicle as a result of avoiding the inevitable relocation to another port due to the anticipated cause (metallic and page) of the dust at the time of the installation of the facility, and it is anticipated that there is a significant obstacle to the operation of the wood port (f) port (e.g., a port-related industry (e., ferries) and a strike due to the port labor supplier at the time of the transfer of the export vehicle, which is the main port (f) main cargo.

In addition, on March 14, 2011, the Plaintiff filed an application for a construction permit for the construction of a new factory to assemble vessel block, etc. on the rear site of this case. However, on April 18, 2011, he rejected the application for a construction permit for the construction of a new factory to assemble vessel block, etc. on the rear site of this case, on the sole ground that Magpo-si might cause damage to a motor vehicle for the export of a nearby Mag-A vehicle (hereinafter referred to as "Mag-A vehicle") by a dust generated within the factory. [Grounds for recognition] There is no dispute, and the purport of the entire arguments and arguments set forth in subparagraphs A and 10 (including the number number).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful on the following grounds.

1) In light of the language and text of Article 9(3) of the Harbor Act and the legislative intent thereof, permission for execution of harbor works by a non-management authority for a non-management authority for a non-exclusive harbor project is a binding act by an administrative authority. Since the Plaintiff’s permission for harbor works 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, the Defendant is obligated to grant permission for the instant harbor works.

(ii) the deviation and abuse of discretionary power;

Even if permission for the implementation of a domestic non-management authority's own act constitutes a discretionary act, it has been conducted from May 2005 to September 201, 200, such as vessels and plant cargo assembly and manufacturing. However, there was no case of environmental pollution damage due to dust, etc., the plaintiff has sufficiently established measures to prevent dust damage to cars for export of bubble vehicles located adjacent to the port site of this case, and the construction of vessel bubble and plant cargo disposal facilities promoted by the plaintiff is expected to be helpful for the revitalization of bubble ports and regional economy. If the application for the permission of this case is rejected ultimately, the plaintiff's public interest to achieve through the disposition of this case is not significant, but it is against the principle of equality, since it seems that the plaintiff would suffer disadvantage to the plaintiff due to the disposition of this case, and the disposition of this case violates the principle of proportionality and the principle of equality, and thus, it is ultimately against the principle of discretionary power to the cement plant of this case.

3) On September 27, 2010, the Ministry of Land, Transport and Maritime Affairs in violation of the principle of trust protection approved the implementation of "other minor profitability projects related to measures to improve harbor equipment and facilities for the efficient disposal of plant cargo" applied by the Plaintiff as the business owner. On October 25, 2010, the Plaintiff, the Defendant, the Sinpo, and the Sinpo Port (ju) entered into an investment agreement on the investment of October 25, 2010. This constitutes an expression of public opinion by the Ministry of Land, Transport and Maritime Affairs and the Defendant, and it constitutes the expression of the public opinion. Although the Plaintiff was trusted to take follow-up measures in accordance with the above project implementation approval and investment agreement, it is contrary to the principle of trust protection.

B. Relevant statutes

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

C. Determination

1) Whether a certain act is a binding act or discretionary act with respect to the legal nature of permission for the execution of a harbor project 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. However, according to the provisions of Article 9(3) of the Harbor Act, a non-management authority’s permission for the execution of a harbor project is an administrative act that basically grants a specific person a right or a benefit, and the requirements for the permission stipulated in each subparagraph of the above Article are not established uniformly, and thus, there is a room for discretion to an administrative agency. Thus, a decision on whether a non-management authority’s permission for the execution of a harbor project belongs to an

Therefore, the plaintiff's assertion on the premise that the permission for the application for permission for the instant harbor works constitutes the Defendant's binding act is without merit without any need to further examine the remaining points.

2) As to whether or not the discretion has been exceeded or abused

A) Criteria for judicial review of discretionary action

In the case of discretionary act, the court shall examine only whether the act in question is in deviation or abuse of discretionary power without drawing an independent conclusion, taking into account the room for determining the public interest based on the discretion of the administrative agency, and the examination of whether the act in question is in deviation or abuse of discretionary power is subject to the determination of mistake of facts, violation of the principle of proportionality or equality.

B) the facts of recognition

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

○ In the case of a wooden harbor, a total of 5 lines, such as one string, three strings and one strings, etc., are in operation.

The port site of this case where the plaintiff intends to establish the franchise store is located in the multi-functional area, and it is urgent to secure a continuous and stable water transport due to low operational performance from 2004 to recent years.

When the plaintiff installs and operates an plant cargo disposal facility in the instant port site, etc., it is expected that the plaintiff will be able to revitalize the wooden harbor and the regional economy through new water flow and job creation.

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 effect of 10,300,000 won per annum.

(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 subcontractor filed a civil petition to the Defendant

Accordingly, on November 11, 2010, the Defendant demanded the Plaintiff to establish measures to prevent dust damage under the plan to install Grand Cargo Treatment Facilities.

(3) On December 20, 2010, the Defendant, including the holding of a meeting to take measures for the prevention of dust damage, held a meeting to prevent dust damage when installing the first new plant cargo treatment facilities. The Plaintiff presented a plan to prevent dust damage, which was formulated in itself, to an auto subcontractor, etc. attending the 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 the prevention of dust damage to Jeonnam-do, Sejong-si, Mapo-si, and Mapo-si, etc. attending the meeting at that place and explained the plan again for the prevention of dust damage to Jeonnam-do, Mapo-si, and the advanced part will be subsequently supplemented.

(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.

A person shall be appointed.

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

○ Abandoned Motor Vehicle is located in approximately 600 meters away from the port site of this case where the Ministry of Finance and Economy, which has been used as a shipper of the motor vehicle for export.

nine companies, including Samsung Heavy Industries, have dealt with large steel structures, 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 automobiles for export of bubble cars 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.

Even in the case of Incheon Port, Msan Port, and Ulsan Port, there is no yet reported fact that there has been damage to motor vehicles for export in the field of motor vehicles for export in the vicinity due to dust generated from feed factories, lecture block assembly factories, etc.

On the other hand, at the luminous port wharf on July 2008, a company manufactured a vessel juth, etc. and caused an accident involving the surface of a motor vehicle for export of approximately 3,000 square meters, which had been waiting in the atmosphere by a neighboring shipper. The main cause of the above accident was that a company A, while manufacturing a vessel juth, etc., did not carry out a exhauster, folding and painting operations. After the occurrence of the accident, at the workplace of the company A and the boundary between the loading site and the loading site, a dustproof wall with a height of 4 meters was installed in height of 3 parts.

(6) According to the basic harbor plan, the automobile wharfs will begin around 201 in the vicinity of the port site of this case.

[Ground of Recognition] Facts without dispute, Gap evidence 4-2, Eul evidence 4-5-2, Gap evidence 1, 13, 14, 17, Eul evidence 18-1, 2, Eul evidence 3-1, 2, Eul evidence 6-1, Eul evidence 7-1, Eul evidence 8-2, Gap evidence 1, 13, 14, 17, and Eul evidence 18-2, Eul evidence 2, Eul evidence 3-1, Eul evidence 7-1, Eul evidence 8-2, and the purport of whole pleadings

3) Determination

According to the above facts, in the future, there is no possibility that the assembly and painting work of plant cargo, etc. conducted in the port site of this case will cause damage to motor vehicles for export of a vehicle due to the relation between outdoor work and the strong wind, and in fact, there is a little case of dust damage in light of the optical port, and if a vehicle transfers a vehicle export port to another port on the ground of dust damage, it is anticipated that a vehicle will have a significant adverse effect on the brea port and regional economy if it transfers the vehicle export port of this case to another port.

However, in full view of the following circumstances revealed through the facts acknowledged as above and the purport of the entire pleading, the defendant's damage to the motor vehicle for export, the transfer of the motor vehicle's export port and the difficulty in port operation, etc. caused by the damage to the motor vehicle for export for the reason of the disposition in this case, are merely a vague threat or possibility of having no specific grounds. Thus, the necessity of public interest to be achieved by the defendant through the disposition in this case cannot be said to be large, but the disadvantage suffered by the plaintiff due to the disposition in this case is excessive. Thus, the disposition in this case is in violation of the principle of proportionality.

○ In the future, it is anticipated that metal and paint dust will occur to a certain extent if plant cargo, etc. are assembled and sealed in the instant harbor site. However, since the fiscal fluor who has been used as the shipping yard for the export of a car is far away from the fiscal 600 meters away from the fiscal fluor who is used as the shipping yard for the export of a car, the damage of a car caused by metal and paint dust seems to be considerably limited. Even if the damage caused by household dust specifically occurs, it is possible to file a civil claim against the plaintiff for damage compensation.

○ Although the company dealing with large-scale steel structure used only a wooden spores for the past five years, there were no cases of dust damage on cars for export of the spores, and there were no cases of dust damage on cars for export of the spores, and there were no cases of dust damage reported on the cases of dust damage even though cement plant was operated on the side of the financial spores used by the spores.

Although there have been an accident that pollutes the surface of a nearby vehicle due to metal and paint generated in the process of manufacturing ○ Blue, etc., the main reason was that the work was conducted without a fire-proof device, and the workplace, such as the vessel lue, etc. and the vehicle lux were immediately adjacent to the workplace.

○ The Plaintiff filed a civil petition to the effect that there is a concern about the decentralization of motor vehicles for export, and the Plaintiff attended the first and second meetings for the prevention of decentralization held by the Defendant, and presented a proposal for the prevention of decentralization to the Defendant, the vehicle subcontractor, and the like.

According to the measures to prevent dust damage submitted by the Plaintiff at the time of applying for permission for the instant harbor works, it is deemed that a detailed plan has been formulated to prevent dust damage, such as installing mobile fire-proof fighters and three sides scattering prevention networks, etc. in order to suppress to the maximum extent the emission and movement of metal and paint dust anticipated to occur during large assembly and painting work, and, in a case where a strong wind with an average speed of at least eight meters is very strong wind, suspending work.

On the other hand, the defendant is likely to suffer from dust in a motor vehicle for the export of a motor vehicle for the purpose of a motor vehicle for the purpose of an infant. The defendant does not present specific and objective grounds.

○ The construction project of plant cargo treatment facilities promoted by the Plaintiff in the instant harbor site and hinterland site is expected to contribute to the revitalization of the regional economy in the future.

0 If the implementation of the project is suspended, the plaintiff is forced to incur a considerable amount of property loss, such as failure to recover the already invested expenses.

Therefore, the defendant's disposition of this case which rejected the plaintiff's application for permission of this case is unlawful as it deviates from or abused discretion, without any need to further examine the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge, judge and assistant judge;

Judges Mobileho

Judges Park Jae-young

A person shall be appointed.