(영문) 서울고등법원 2013.10.4.선고 2012누26328 판결

B. It is confirmed that there is no obligation to return KRW 526,416,00 according to the order to return the amount of KRW 526,416,00 according to the order to return the amount of November 15, 201 to the Republic of Korea of the Plaintiff and

2. The part arising between the Plaintiff and the Defendant’s Minister of Oceans and Fisheries out of the total litigation cost shall be borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant

Purport of claim and appeal

1. Purport of claim

(1) Claim against the primary defendant

On November 15, 2011, the Minister of Oceans and Fisheries revoked the disposition of the payment of compensation for losses against the rehabilitation debtor A corporation and the order of return of KRW 526,416,00, respectively.

(2) Claim against the conjunctive defendant

The text is as described in paragraph (b) of this Article.

2. Purport of appeal

In the judgment of the first instance court, the part against the defendant shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed.

Reasons

1. The facts under the order to cancel or refund compensation for losses do not conflict between the parties, or may be acknowledged based on the whole purport of pleadings as stated in Gap evidence Nos. 1 and 2, and Eul evidence No. 1;

[1]

OA Co., Ltd. is a corporation that has operated marine transportation services and port transportation services as its main business. On February 15, 2011, the decision to commence rehabilitation procedures was made by Seoul Central District Court 201. On February 15, 2011, the plaintiff is a joint manager of the above company (hereinafter referred to as the "corporate debtor"). The Minister of Land, Transport and Maritime Affairs (the Minister of Land, Transport and Maritime Affairs prior to the change: the Minister) from 2006 to 2010, two ships of liquefied natural gas (hereinafter referred to as "LNG") owned by the debtor for rehabilitation (the name: D and E; hereinafter referred to as the "LNG vessels of this case") are two ships (the name: the same shall apply) from among the parties to the international ship under Article 8 (1) of the International Ship Registration Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply).

(units: 1,00 won

A person shall be appointed.

[2]

○ From March 14, 2011 to March 29, 2011, the Board of Audit and Inspection conducted an audit on the Ministry of Oceans and Fisheries. On September 7, 2011, the Defendant issued a request for disposition and notification to the Minister of Oceans and Fisheries with the content that “In the case of LNG ships designated as national essential international vessels, wages for seafarers working on board shall be paid to the owner of LNG ships from the Korea Gas Corporation, which is the owner, which is the owner of the goods, and the compensation for losses were paid to the owner of the LNG ships, such as the debtor for rehabilitation, etc. even if the loss incurred due to the lack of wage burden on the additional work on the Korean seafarers, and thus,

Pursuant to ○○, on November 15, 201, the Minister of Oceans and Fisheries issued an official document stating that “The Minister of Maritime Affairs and Fisheries shall cancel the disposition of compensation for losses paid in accordance with Article 8(4) of the International Ship Registration Act (from 2006 to 2010) and issued an order for return of KRW 526,416,00 to recover the compensation paid in accordance with the International Ship Registration Act” (hereinafter referred to as “instant order for return”) by submitting a return plan including payment deadline and payment method by December 2, 201 and submitting it by December 2, 201.”

2. The parties' assertion

A. The plaintiff's assertion

(1) A claim against the primary defendant (a collective agreement and a labor-management agreement entered into by the organization of the Union of Seafarers' Unions and the association of ocean-going shipping business operators, according to the authority granted by the International Ship Registration Act, have agreed to implement the total number of technical concentrates (T/O system) for the scope of employment of international ship seafarers. Accordingly, the scale of foreign seafarers’ boarding is being operated as the total number system by ship. Accordingly, compensation for losses arising from the designation of a national essential international ship should be based on the total number of ships by ship rather than the fixed number of ships. In the case of a rehabilitation debtor, the amount of compensation for losses incurred by the designation of a foreign passenger on board due to the designation of a national essential international ship of the instant LNG ships, so the Defendant cannot seek the refund of

In addition, the rehabilitation debtor was ordered to commence rehabilitation procedures on February 15, 201, and the rehabilitation plan was authorized on October 14, 201. The rehabilitation claim of this case is rehabilitation claim arising from property arising before the commencement of rehabilitation procedures, and the Minister of Oceans and Fisheries reported the above compensation claim as rehabilitation claim from the defendant rehabilitation procedure. Thus, the rehabilitation debtor is exempted pursuant to Articles 18 and 251 of the Debtor Rehabilitation and Bankruptcy Act, and the Minister of Oceans and Fisheries cannot claim the refund of the compensation for this case already paid.

Therefore, the order of return of this case is illegal administrative disposition and is sought to revoke the order of return of this case from the Minister of Oceans and Fisheries.

(2) In a case where a claim against the conjunctive Defendant cannot be deemed an administrative disposition of the instant return order, the Plaintiff and the rehabilitation obligor’s claim against the Defendant for the same reasons as the cause of the claim against the Defendant’s Minister of Maritime Affairs and Fisheries does not exist, and thus, the Plaintiff and the rehabilitation obligor’s claim for the instant compensation for losses against the Defendant

B. The defendants' assertion

Considering the language, legislative intent, and history, etc. of Article 8(4) of the International Ship Registration Act, the aforementioned provision requires that the foreign crew members be restricted on board according to the designation of the State essential international ship and thus, the relevant shipowner, etc. be compensated for losses incurred by the relevant ship owner, etc. However, in the case of the instant LNG ships, the Plaintiff did not incur any losses to the rehabilitation obligor due to the Korea Gas Corporation’s payment of the crew expenses, and the instant LNG ships owned by the rehabilitation obligor did not meet the requirements for the payment of compensation for losses under the aforementioned provision, and thus, the instant compensation for losses was paid, and the rehabilitation obligor

In addition, the legal nature of the money subject to the order of return of this case is unjust enrichment and there is no legal ground for unjust enrichment in order to establish unjust enrichment. However, the cancellation of the payment of compensation for losses, which is the act of removing legal cause, after the commencement of rehabilitation procedure, does not constitute property claim arising before the commencement of rehabilitation procedure.

3. The claim for compensation for loss under Article 8 (4) of the International Ship Registration Act against the primary defendant is prepared by the State to compensate for losses incurred by the owner of a ship or ocean-going transport business (hereinafter referred to as "owner, etc.") due to the designation of an essential international ship of the State and the limitation on boarding of foreign crew members. The International Ship Registration Act does not have any provision regarding the procedures for objection to the determination of compensation, the refund of erroneously paid compensation, and the collection procedures. Thus, even if the Minister of Oceans and Fisheries orders the return of compensation already paid by the defendant to the primary defendant, it cannot be issued an administrative disposition such as compelling the other party to return the compensation in the superior status of public authority. Thus, even if the Minister of Oceans and Fisheries ordered the debtor to return the compensation of this case, it is reasonable to deem that the compensation of this case did not fall under the requirements of Article 8 (4) of the International Ship Registration Act, and thus, it is a peremptory notice to urge the return thereof. In order for the plaintiff to dispute the order to return of this case, it must be confirmed by public law party litigation.

Therefore, the lawsuit against the defendant on the premise that the return order of this case is an administrative disposition is unlawful.

4. Claim against the conjunctive defendant.

(a) Whether the requirements for payment of compensation for losses under the International Ship Registration Act are satisfied;

(1) Relevant statutes

Article 5(2) of the International Ship Registration Act provides that the standards and scope of service on board shall be determined by the Minister of Land, Transport and Maritime Affairs after hearing the opinions of the federation of labor unions consisting of seafarers (hereinafter referred to as "association of seafarer labor unions") and interested parties, such as ocean-going transport business associations established by the shipowner, etc. (hereinafter referred to as "Association of ocean-going transport business operators") and the heads of relevant central administrative agencies. In addition, Article 6 of the International Ship Registration Act provides that the Federation of Seafarers' Unions and the Association of ocean-going transport business operators have the authority to conclude a collective agreement applicable to foreign seafarers working on board international ships. Article 8 of the International Ship Registration Act provides that the Minister of Land, Transport and Maritime Affairs may designate ships meeting the standards prescribed by Presidential Decree as international ships in consultation with the heads of relevant central administrative agencies as necessary for efficient use of international ships and seafarers in preparation for emergencies (paragraph (1)), and the State essential international ships designated under paragraph (1) may restrict foreign seafarers' boarding of ships. In such cases, when the shipowner, etc. causes a loss due to pay wages on board a ship due to the shipowner.

Article 6 of the Enforcement Decree of the International Ship Registration Act (amended by Presidential Decree No. 24443, Mar. 23, 2013; hereinafter the same shall apply) provides that the criteria for compensation for losses under Article 8 of the International Ship Registration Act shall be calculated based on the annual average wages of Korean seafarers who board an international ship essential to the State due to restrictions on boarding of foreign seafarers and the annual average wages of foreign seafarers who board an international ship shall be calculated based on the difference between the annual average wages of foreign seafarers who board an international ship essential to the State and the annual average wages of foreign seafarers who board an international ship under Article 6 (1). The criteria for compensation for losses under paragraph (2) shall be calculated separately by type and class of occupation, type of ship and sea route (Article 2). The full amount of annual compensation for losses for an international ship essential to the State shall be paid to the Minister of Land, Transport and Maritime Affairs in proportion to the number of days of actual boarding (Article 8 of the Enforcement Decree of the International Ship Registration Act).

Article 6 of the Enforcement Rule of the International Ship Registration Act (amended by Ordinance of the Ministry of Oceans and Fisheries No. 1 on March 24, 2013; hereinafter the same shall apply) provides that a person who intends to receive compensation for losses under Article 8 (4) of the International Ship Registration Act shall submit an application for the payment of compensation for losses in attached Form 5 to the Minister of Land, Transport and Maritime Affairs by December 15, 2012, along with an abstract related to navigation in the relevant year, a statement necessary for calculating compensation for losses, and

(2) Facts of recognition

The following facts may be recognized by considering the whole purport of the pleadings in each entry in Gap evidence Nos. 3, 5, 6, and Eul evidence Nos. 2 through 4 (including paper numbers):

[1]

Pursuant to Article 6 (1) of the International Ship Registration Act, F organizations and G associations concluded international ship collective agreements (hereinafter referred to as "instant collective agreements") with the following contents:

Article 1 This Convention shall apply to foreign seafarers on board a ship registered under the International Ship Registration Act of the Republic of Korea, which is the only collective agreement under Article 6 of the International Ship Registration Act.

Article 3 Boarding of Foreign Seafarers

(1) The scope of employment of seafarers subject to this Convention shall be governed by the agreements separately determined by the F Organizations and the G Association: Provided, That if there is no agreement determined by the F Organizations and the G Association, the scope of employment of foreign seafarers shall govern.

(2) A company may implement a T.0 by type of ship and a system through labor-management consultation within the scope of the total number of seafarers employed by each ship ship multiplied by the scope of employment of seafarers per ship on international ships as referred to in paragraph (1) and the number of seafarers employed by each ship for international ships of the relevant company, according to the characteristics of each international ship.

On December 28, 2007, the F organization and the G Association have prepared a labor-management agreement to stabilize the employment of Korean seafarers and to maintain their appropriate scale (hereinafter referred to as the "labor-management agreement of this case") with the following contents. Article 2 of the Labor-management agreement of this case is required to secure essential vessels and introduce the designated vessel system.

1. To administer international ships classified into national essential international ships, designated international ships and general international ships;

Article 3 Scale of boarding of foreign seafarers

1. The number of foreign seafarers on board the international ship essential to the State shall not exceed six assistant seafarers per ship as prescribed by the International Ship Registration Act and subordinate statutes;

2. The number of foreign seafarers on board a designated international ship shall not exceed eight, but one marine officer and seven assistant seafarers may be operated under a unit labor-management agreement according to the status of type of ship and type of ship;

3. The number of foreign seafarers on board a general international ship shall be as follows and may be implemented as a seating capacity system for each ship:

- 2 foreign marine officers, 8 assistant officers from January 1, 208

- From January 1, 2009 to December 2008: ‘‘(- From January 1, 201, Articles 1 and 2 above provide for the employment of foreign seafarers, except for the vessel and the head of the agency, on a preferential basis.

On the date of entry into force of Article 9, the agreement shall enter into force on January 1, 2008, except where the date of entry into force of each item is otherwise specified.

[2]

From the end of December of 2005 to the end of December of the next year, the Minister of Maritime Affairs and Fisheries publicly announced the compensation standards for losses for essential international vessels to be applied to the following year, classified the compensation amount under Article 7 of the Enforcement Decree of the International Ship Registration Act by type of ship and by books of seafarers, and paid the full amount of annual compensation if the number of annual navigation days is not less than 320 days, and paid in proportion to the number of actual navigation days as of 320 days if the number of annual navigation days is less than 320 days, and specified that the compensation amount should be paid based on the application for payment of compensation and the attached documents submitted to the G

○On the other hand, the Korea Gas Corporation entered into a transportation contract for LNG exclusive vessels with the debtor for rehabilitation on December 12, 1999 and June 2000, with a view to stably taking over the LNG introduced into Korea over a long-term period of time, all seafarers on board LNG vessels with the contract term of 25 years, who are Korean nationals, and their wages (cost for seafarers) are to be borne by the Korea Gas Corporation.

The Korea Gas Corporation has paid wages to Korean seafarers on board the instant LNG ships.

(3) Determination

(A) The circumstances examined in light of the relevant statutes and the purport of the entire pleadings are as follows.

The latter part of Article 8(4) of the International Ship Registration Act provides that "if a loss occurs due to the shipowner's burden of wages by restricting boarding of a foreign seafarer" concerning the requirements for the payment of compensation for loss. According to the language of the above provision, it is interpreted that the shipowner should compensate for the loss in actual cases where a Korean seafarer on board an international ship essential to the State causes a loss equivalent to the difference of wages on board of a foreign seafarer on behalf of a foreign seafarer.

The plaintiff's assertion is that the "reduction of the total number of foreign seafarers by ship company due to the designation of an essential international ship itself shall be compensated for the loss." However, Article 8 (4) of the International Ship Registration Act and relevant provisions of the Enforcement Decree are not a provision made on the premise of "the total number of foreign seafarers by ship company". In other words, Article 7 of the Enforcement Decree of the International Ship Registration Act on the criteria for compensation for losses caused by the limitation on foreign seafarers' boarding of an essential international ship is established on February 24, 1998 and its framework is maintained. However, even if the plaintiff's total number of foreign seafarers by ship was implemented from January 1, 2008 in the form of a labor-management agreement, it cannot be interpreted that Article 8 (4) of the International Ship Registration Act and relevant provisions of the Enforcement Decree are based on "reduction of the total number of foreign seafarers by ship company".

Article 5(2) and Article 6(1) of the National Ship Registration Act appears to be the basis for the total fixed number of seafarers agreed in the collective agreement and the labor-management agreement of this case. In determining the "standard and scope of work on board of foreign seafarers", the Ministry of Oceans and Fisheries shall present his/her opinion (Article 5(2)), and shall give his/her authority to conclude collective agreements applicable to foreign seafarers" (Article 6(1) to the Union of Seafarers' Unions and the International Ship Transport Business Association, and Article 8(4) and (7) of the International Ship Registration Act and Articles 6 and 7 of the Enforcement Decree of the same Act, etc., to exclude the difference between the total number of seafarers on board and the total number of seafarers on board and the total number of foreign seafarers on the basis of the standard of compensation for the difference between the total number of seafarers on board and the total number of seafarers on board and the total number of foreign seafarers on the basis of Article 6(4) and (7) of the Enforcement Decree of the International Ship Act and Article 6(2) of the International Ship Registration Act.

In the meantime, according to the Plaintiff’s assertion, the Plaintiff’s loss is the difference between wages incurred by not having a foreign seafarer on board “other ships according to the total fixed number system for each ship company,” and as a result, on board a Korean seafarer on behalf of the Korean seafarer. However, Article 7(1) of the Enforcement Decree of the International Ship Registration Act provides that the amount of compensation for loss shall be calculated on the basis of the annual average wage of “Korean seafarer on board an essential international ship”. If the Plaintiff asserts, the amount of compensation for loss should be calculated on the basis of the average wage of a Korean seafarer on board an essential international ship other than the national essential international ship. However, according to the above Enforcement Decree, the amount of compensation for loss should be calculated on the basis of the average wage of a Korean seafarer on board an essential

Article 7 (4) of the Enforcement Decree of the International Ship Registration Act provides that "compensation for losses for an essential international ship shall be paid in full in cases where the number of navigation days per year is at least 320 days, and it shall be paid in proportion to the actual number of navigation days as of 320 days if the number of navigation days is less than 320 days," thereby having a difference in the amount of compensation depending on the number of navigation days of national essential international ships. Accordingly, in light of the fact that there may be a difference in the amount of compensation by ship, it is difficult to view that the above provision of the Enforcement Decree was scheduled to compensate for

According to Article 8(1) of the Enforcement Decree of the International Ship Registration Act and Article 6 of the Enforcement Rule of the International Ship Registration Act, a shipowner, etc. shall submit an application for payment of compensation and related documents determined by the Minister of Land, Transport and Maritime Affairs in order to receive compensation for loss. In light of the fact that the relevant ship name subject to compensation for loss is specified in the above application, and the attached documents also include a summary of the relevant ship's operation details and a list of crew on board (Article 6 subparag. 1 and 3 of the above Enforcement Rule), the compensation for loss shall be calculated for each national essential international ship regardless of whether the relevant ship's total fixed number

(B) In full view of the above circumstances, Article 8(4) of the International Ship Registration Act and the provisions of the relevant Enforcement Decree provide that the compensation for losses shall be made by the requirement of ‘an increase in actual wage burden for each ship' rather than ‘a decrease in the total number of foreign seafarers for each ship company.’

As seen above, as the Plaintiff entered into with the Korea Gas Corporation, according to the LNG Exclusive Ship Transport Contract.

Since the Korea Gas Corporation received full wages from Korean seafarers for the instant LNG vessels, it cannot be said that the instant vessels were designated as a national essential international vessel, thereby causing losses to the Plaintiff as much as the difference in wages between Korean seafarers and foreign seafarers. Accordingly, the Plaintiff’s assertion on this different premise is without merit.

(b) Whether immunity is granted pursuant to the Debtor Rehabilitation and Bankruptcy Act;

(1) Relevant legal principles

According to the Debtor Rehabilitation and Bankruptcy Act, any property claim that has arisen before the commencement of rehabilitation procedures for a debtor falls under a rehabilitation claim (Article 118 subparagraph 1 of the same Act); any custodian shall submit a list of rehabilitation creditors, stating the names and addresses of rehabilitation creditors, the details and causes of the rehabilitation claims, etc. (Article 147 (1) and (2)); any rehabilitation creditor who intends to participate in the rehabilitation procedures shall report the details and causes, etc. of the rehabilitation claims to the court within the reporting period (Article 148 (1)); and any rehabilitation creditor who intends to participate in the rehabilitation procedures shall report the details and causes, etc. of the rehabilitation claims to the court within the reporting period (Article 148 (1)); and any debtor shall be exempted from his/her liability for all rehabilitation claims and rehabilitation security rights (Article

claim against such person shall be limited to a claim recognized pursuant to any of the subparagraphs of Article 179(1), which is a general provision for a public-interest claim, or a claim recognized as a public-interest claim pursuant to an individual provision.

In full view of the above provisions, claims that arise before the commencement of rehabilitation procedures, which cannot be deemed public-interest claims, constitute rehabilitation claims, and only rehabilitation creditors who are entered in the list of rehabilitation creditors or reported shall be entitled to receive repayment according to the rehabilitation plan. Therefore, rehabilitation creditors who are not entered in the list of rehabilitation creditors, and who are not reported within the reporting period cannot participate in the rehabilitation procedures, and the rights of the rehabilitation plan are forfeited, and the rehabilitation debtor shall be exempted from its obligation.

(2) Determination

However, as seen earlier, the instant claim for the refund of compensation for losses against the Defendant’s debtor is attributable to the payment of the instant compensation for losses between 2006 and 2010 without any legal cause to the Plaintiff. As such, the instant claim for the refund of compensation for losses should be deemed to have already occurred at the actual payment date (2006 and 2010) prior to the commencement date of rehabilitation procedures ( February 15, 201), and cannot be deemed to have accrued only from the act of cancellation of the payment of compensation for losses. Moreover, the instant claim for the refund of compensation for losses does not constitute a claim recognized under each subparagraph of Article 179(1) of the Debtor Rehabilitation and Bankruptcy Act or a claim recognized as a public-interest claim under each individual provision, and thus, the instant claim for the refund of compensation for losses constitutes a rehabilitation claim under Article 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act.

On the other hand, there is no dispute between the parties that the defendant Republic of Korea did not report the claim for the refund of the compensation of this case as the rehabilitation claim in the rehabilitation procedure.

Therefore, the plaintiff and the debtor were exempted from the obligation to return the compensation for losses of this case. Therefore, there is no obligation of KRW 526,416,00 according to the order to return the compensation for losses of this case to the plaintiff and the debtor on November 15, 201, and as long as the defendant and the debtor seek the return of the above money to the debtor, there is a benefit to seek confirmation of the existence of the obligation, so this part of the plaintiff's assertion is with merit.

5. Conclusion

Therefore, the plaintiff's lawsuit against the main defendant is dismissed as it is unlawful, and the plaintiff's claim against the main defendant in Korea is justified as it is accepted as it is, and the judgment of the court of first instance is unfair as it is different from this conclusion, so it is ordered to change the judgment of the court of first instance as above.