(영문) 부산지방법원 2014.10.10.선고 2013구합21121 판결

1. On August 26, 2013, the Defendant’s order to revoke the supervisory order for the correction of the fund structure for the Hanyang Tunnels Private Investment Project, which was issued to the Plaintiff.

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

3.The effect of the supervisory order described in paragraph (1) shall be suspended until this judgment becomes final and conclusive.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. Status of the parties

1) The White Tunnels Private Investment Project (hereinafter referred to as the “Private Investment Project”) is a project that constructs and operates a tunnel of 2.3 km in length in accordance with the Private Investment Act (hereinafter referred to as the “Private Investment Act”) on infrastructure facilities.

2) The Plaintiff is a legal entity established on October 2, 200, for the acquisition of the right to manage and operate the white tunnel and the operation of the white tunnel, and the Defendant is the competent authority for the instant project.

(b) Succession to the status of a party to the first concession agreement and concession agreement;

1) Treatment Co., Ltd. (hereinafter referred to as "treatment") and Free Construction Co., Ltd. (hereinafter referred to as "Free Construction") concluded the Convention on the Implementation of Private Capital Inducement Project (No. 8) with Busan Metropolitan City on Apr. 27, 1993 and started operation after completing the construction of a white tunnel around Jan. 8, 1998. Treatment acquired the right to manage and operate the project of this case on Feb. 10, 1998, and entered into the concession agreement (No. 2) with Busan Metropolitan City on Dec. 20, 199.

2) As part of the implementation of a corporate improvement plan entered into with the claims group, treatment was anticipated to transfer the project operator status of the instant case and the right to manage and operate the white tunnel to a special purpose corporation to be established as a shareholder of the claims group, and requested the Busan Metropolitan City to approve the transfer on August 31, 200, and the Busan Metropolitan City approved the transfer on September 15, 200. Accordingly, on September 15, 200, the Busan Metropolitan City approved the right to manage and operate the white tunnel at KRW 112.9 billion upon the Plaintiff’s establishment and negotiation with treatment. On November 10, 2001, it acquired the right to manage and operate the white tunnel at KRW 10 billion from the Korean bank, etc.

3) On March 10, 2004, Mquito Korea Infrastructure Infrastructure Investment Company Co., Ltd. (hereinafter “Maquito Korea Infrastructure Investment Company”) purchased the Plaintiff’s shares in a lump sum from the claim group of treatment jointly with the Kanman Investment Co., Ltd. (hereinafter “Sanman Investment Company”), and granted a loan of KRW 125.4 billion (124.8 billion won to the Plaintiff, and KRW 92 billion,000,000,000,000) to the Plaintiff, thereby having the Plaintiff repay all senior loans to the existing bank.

4) On January 3, 2008, Manqui Infrastructure Investment Company transferred the Plaintiff’s loan claims and the contractual status of investors to a limited company specialized in Eti-dong Commercialization (hereinafter “cost”) with a view to asset-backed securitization under the Asset-Backed Securitization Act. Before January 4, 2008, the expenses and Eti issued asset-backed securities based on the above bonds on January 4, 2008. Meanwhile, on January 7, 2008, the Manqui Korea Infrastructure Investment Company acquired the Plaintiff’s management and operation rights and loan rights and interest in the Plaintiff. The Defendant’s Disposition 1) around 2008, Busan Metropolitan City demanded the Plaintiff to share profits from refinancing, such as the change of equity capital, changes of the conditions of financing outside capital, etc., and the Plaintiff to negotiate the tax rate under the Corporate Tax Act amendment, ② revenue guarantee rate under the Corporate Tax Act, ③ adjustment rate of tolls, and ④ adjustment of the rate of profit at the time of entry into Busan Metropolitan City and Busan Metropolitan City’s agreement.

2) From August 23, 2010 to November 5, 2009, the Board of Audit and Inspection conducted an audit on the total of 29 public-private partnership projects, including Incheon International Airport Expressway, Songdo and Man-do and Busan Youngdo, where the Government paid compensation to private-private partnership enterprises due to the low actual demand for the public-private partnership projects operated as of August 23, 201, which were operated by the Board of Audit and Inspection. The instant project was also included in the subject of audit and inspection. The Board of Audit and Inspection, which audited the instant project, notified Busan Metropolitan City of the following audit results:

1. The concession agreement is calculated based on a financial model that applies the equity capital, ratio of other capital, interest rate for financing, corporate tax, etc. as agreed at the time of conclusion of the agreement. As such, if a person for build-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-lease-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-lease-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-transfer-lease-related.

3) On August 26, 2013, the Defendant issued an order to rectify the amount of capital by changing the debt ratio to △△ 135% as of the end of 2012 by changing the structure of capital to the direction of increasing the financial burden, notwithstanding the Plaintiff’s duty to faithfully operate a public-private partnership project, and to rectify the amount of capital within 90 days as of the end of 2012 by changing the financial ratio to △ 135%, and if such situation continues, there is a concern that the management of public-private partnership is difficult due to the difficulties in normal operation of the white tunnel, pursuant to Article 45 of the Public-Private Partnerships Act and Article 35 subparag. 1 of the Enforcement Decree of the same Act (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 7 through 10, 16, Eul evidence Nos. 8, 14, 15, 21, 22 and 23, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Non-existence of the duty to maintain funds

The Plaintiff’s financial structure is of the nature to be determined based on the Plaintiff’s autonomous judgment and operational ability. The instant concession agreement does not have any provision on the Plaintiff’s duty to maintain the financial structure, and the structure of funds included in the booming formula on the calculation of tolls under the said agreement is limited to the family value, and the decrease in equity capital and the increase in loans therefrom are only general characteristics in private investment projects. Therefore, it cannot be deemed that the Plaintiff has the duty to maintain the financial structure under the instant concession agreement.

Therefore, the instant disposition based on this premise is unlawful.

(ii) the requirements of supervisory orders and deviations from limits;

Even if the Plaintiff bears the duty to maintain funds in accordance with the instant concession agreement, the Busan Metropolitan City can take follow-up measures in accordance with the concession agreement on the breach of the duty to maintain funds, and the circumstance that the Plaintiff’s debt ratio is high does not constitute “where it is necessary for the normal operation of facilities, which are the requirements for issuing a supervisory order under Article 45 of the Private Investment Act,” and the change of the Plaintiff’s financial structure would seriously undermine the Plaintiff’s free management activities, which are the project implementer, and thus, deviate from the limitation

3) The instant disposition in violation of the principle of clarity violates the principle of clarity by clarifying the meaning of restitution of the structure, such as whether the Plaintiff’s shareholder and creditor are changed, whether additional investments should be made, and whether the loan interest rate should be restored to the original state.

4) Lack of feasibility

The restoration of the financial structure of the plaintiff includes the increase of capital, so it is impossible for the plaintiff to implement it without the cooperation of the Maqui Infrastructure Investment Company, a corporation separate from the plaintiff.

5) Violation of the duty to establish and publish a disposition standard

In accordance with Article 20 (1) of the Administrative Procedures Act, the defendant should have established and publicly announced the disposition standard of supervisory order under Article 45 of the Act on Private Participation in accordance with Article 20 (1).

B. Relevant legislation

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

1) The main contents of the instant concession agreement concluded on December 20, 1999 by Treatment and Busan Metropolitan City are as follows:

Article 1(Purpose)The purpose of this Convention is to amend the "Convention on the Implementation of Private Participation in Infrastructure," which is concluded between Busan Metropolitan City and Treatment pursuant to the provisions of Article 34 of the Road Act, to "the Convention on the Implementation of Private Participation in Infrastructure" in accordance with the provisions of the "Private Participation in Infrastructure Act".Article 3 (Designation of Project Implementer) The Busan Metropolitan City designates the treatment of the Project as a project executor for the Project and establishes the management and operation rights, and shall designate, approve, establish and grant the project operator the qualifications and rights to perform the following acts (excluding each paragraph omitted):

Article 4 (Period of Gratuitous Use) (1) Ownership of facilities pursuant to Article 14 of this Convention shall revert to Busan Metropolitan City in accordance with the provisions of the Public-Private Partnerships Act and this Convention, and the Busan Metropolitan City shall establish management and operation rights at that time under Article 26 of the Public-Private Partnerships Act. (2) After the expiration of the operation period, a project operator shall transfer his/her authority under Article 3 to Busan Metropolitan City. The project operator shall, in principle, perform his/her duties and expenses in accordance with this Convention. Article 7 (Duties and Powers of the Project Operators) (1) The project operator shall be responsible for complying with all Acts and subordinate statutes and regulations related to the project and shall faithfully implement this Convention, and shall endeavor to ensure that the implementation, management and operation of the project may be carried out in good faith. (2) The Busan Metropolitan City shall grant the project operator the right and operation of the project referred to in Article 3 and shall assist the project operator in the completion of the two-month operation period after the completion of the two-month operation period, and shall grant the project operator any additional subsidy to the project operator in accordance with Article 10.

Article 13 (Maintenance and Management of Facilities) ① The project executor shall maintain and repair the facilities subject to the maintenance and management of the road as provided in Article 14 so that it can maintain its function as a good manager and shall manage the roads with the aim of fulfilling its management obligations as a good manager. The scope of the roads and attached facilities to be maintained and managed by the project executor under Article 14 shall be as follows:

Article 32 (Settlement of Disputes) (1) Parties to the Convention shall endeavor to resolve any objection, dispute, etc. arising out of or in connection with this Convention through mutual consultation in good faith. (2) The jurisdiction of civil trials related to this Convention shall be the Busan District Court.Article 36 (Applicable Laws) (1) above and contracts and documents entered into or made in accordance with this Convention shall be governed and interpreted in accordance with the laws of the Republic of Korea.With respect to matters not otherwise provided for in this Convention, it shall be governed by the relevant Acts and subordinate statutes, such as the Act on Public-Private Partnerships and the Enforcement Decree of the same Act, the basic plan for public-private partnership projects, and the basic plan for public-private partnership projects.

2) The conditions for approval presented by Busan Metropolitan City while approving the transfer of the right to manage and operate a white tunnel for treatment on September 15, 200 are as follows:

[Conditions of Approval] The transferee succeeds to the obligations and rights of the concessionaire under the concession agreement and the implementation of the provisions under the concession agreement, except that the transferee shall continue to have the obligation as the concessionaire of treatment.

The treatment shall obtain the approval of the defendant by concluding an agency contract for the maintenance and operation of a facility from the transferee, and the level of service and maintenance and management of the user shall be identical or improved before the transfer. Expenses incurred in the transfer, acquisition, and improvement, etc. of the management and operation right by the transferee shall be treated as the expenses of the contracting parties. If the terms and conditions of the contract for the transfer and acquisition are not satisfied,

3) The result of the change in the Plaintiff’s financial structure is as follows.

A person shall be appointed.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, Eul evidence 21, 22, and 23, the purport of the whole pleadings

(d) judgment;

1) Whether the Plaintiff is obligated to maintain the financial structure

In light of the fact that the Defendant ordered the Plaintiff to change the financial structure from the instant disposition to the equity capital and the size of the loan under the financial structure premised on calculating tolls, etc., the instant disposition is premised on the Plaintiff’s duty to maintain the above financial structure in accordance with the instant concession agreement.

However, in full view of the facts acknowledged earlier, as well as the evidence as seen earlier, and the following circumstances revealed by adding the whole purport of the pleadings to the statement No. 15, it is difficult to view that the Plaintiff is obliged to maintain the financial structure premised on the determination of tolls under the instant concession agreement during the period of the operation of the white tunnel.

① The instant concession agreement only provides for the calculation of tolls, etc. by presenting a certain financial structure, and does not explicitly stipulate that the concessionaire is obliged to maintain such financial structure.

② Inasmuch as the concessionaire’s equity capital and loan were not procured at the stage of concluding the concession agreement, even if the concession agreement was based on a certain structure of funds, it should be deemed that the said agreement only assumes a single fund structure that can be formed by the concessionaire for the purpose of calculating tolls for facility users in the future. This is more true in light of the fact that the concession agreement of this case does not separately establish a corporation, but at the same time calculates tolls, etc. on the premise of a arbitrarily assumed funding structure, such as equity capital ratio. In particular, the size and interest rate of the loan is of the nature to be determined in accordance with the loan agreement when the concessionaire borrows from the financial institution in the future. Thus, insofar as the lending financial institution participated in the concession agreement or the concessionaire does not participate in the financing structure, it cannot be deemed that the concessionaire bears the duty to borrow loans from the financial institution in accordance with the interest rate stipulated in the concession agreement.

(3) The revenue of a private investment project shall lead to a construction period in which only the construction cost is invested and a long-term operation period (in the case of the project in this case, about twenty-five years) is over which the construction cost is over.

In addition, it can be easily anticipated that the financial risk may change before and after the completion and commencement of construction of facilities subject to public-private partnership projects, and that the external financial environment may change during the period of operation for a long time, and the actual volume of passage of the relevant facilities (including the size of loans and their interest rates). In accordance with such a change, it is reasonable to view that the financial structure of the project implementer (including the size of loans and their interest rates) may change. In addition, in addition to how to constitute the financial structure, it is reasonable to deem that the fund structure of the project implementer falls under the management technique of the project implementer as well as the minimum equity capital ratio, etc. to be explicitly maintained during the construction period and operation period in the concession agreement where there is no explicit provision on the duty to maintain the financial structure, in consideration of the public nature of build-transfer-lease projects, should be interpreted that the project implementer bears the duty to maintain such financial structure during the period of operation for a long time.

④ In applying for approval for transfer or acquisition of the right to manage and operate a white tunnel, treatment as an existing project operator was explicitly stated that the capital of a special purpose company to be established for the transfer or acquisition of the right to manage and operate a white tunnel would be KRW 10 million. Busan Metropolitan City granted approval for transfer or acquisition of the right to manage and operate a white tunnel on September 15, 200, and granted approval for transfer or acquisition of the right to manage and operate the white tunnel without any problem. The Busan Metropolitan City presented an abstract conditions of approval that the transferee should comprehensively succeed to the rights and obligations of the transferee despite the receipt of the written request for approval for transfer or acquisition of the right to manage and operate the white tunnel on September 15, 200.

⑤ In light of the definitions of re-financing (Article 3 subparag. 74), procedures (Article 75), and sharing of profits therefrom (Article 76), the Korea Development Institute established on February 2, 2007 (Article 15) provides that “The provisions on re-financing and sharing of profits therefrom were introduced from annual plans in 2004 (Article 2004-7, No. 10, No. 10, No. 20-2 of the Ministry of Planning and Human Resources Planning)” and the equity capital ratio that the concessionaire shall maintain during the construction period and operation period (Article 15). In light of the contents and amendment of the concession agreement or the basic plan on re-financing, the project operator may obtain the minimum ratio of equity capital within the scope of maintaining the equity capital ratio, and the project operator may obtain the reasonable interpretation of the terms and conditions of the concession agreement as stated above, including whether prior notice and consultation have been made to secure the public interest of the build-transfer-lease project and whether the project operator will be subject to fair equity capital ratio and supervision.

2) Whether the requirements for supervisory orders are incomplete and exceed the limits

Article 45 (1) of the Private Investment Act provides that "The competent authority may supervise affairs related to a public-private partnership project of a concessionaire and issue an order necessary for supervision only to the extent that it does not undermine the free management activities of the concessionaire, as prescribed by the Presidential Decree." Article 35 of the Enforcement Decree of the same Act provides that "Where the competent authority deems it necessary for the prevention of defective construction or the normal operation of the facility, the competent authority shall provide that

Therefore, whether the instant disposition satisfies the requirements of supervisory order under the Private Investment Act and complies with the limits thereof shall be determined based on (1) whether the instant disposition is necessary for the normal operation of facilities, and (2) whether the instant disposition was issued to the extent that does not undermine the project implementer’s free business activities.

In full view of the following circumstances that can be seen by comprehensively taking account of the aforementioned facts and the aforementioned evidence and the statement in the evidence No. 37, it is reasonable to deem that the instant disposition was unlawful since it did not meet the requirements for issuing a supervisory order under Article 45 of the Public-Private Partnerships Act, or exceeded the bounds of the supervisory order.

1. Sanctions against breach of duty under the concession agreement and the issuance of supervisory orders for the normal operation of a facility should be distinguished. Therefore, even if the Plaintiff bears a duty to maintain the structure of the fund under the concession agreement, and breached such duty, sanctions against breach of duty under Article 32 of the concession agreement of this case shall follow the dispute resolution procedure set forth in Article 32 of the concession agreement of this case

In principle, however, if the normal operation of the facility is difficult due to the violation of the duty, it is possible to exceptionally promote the normal operation of the facility through the issuance of a supervisory order.

② As seen earlier, it is difficult to see that the Plaintiff is obligated to maintain the financial structure under the instant concession agreement. Therefore, the Plaintiff’s financial structure at present differs from the financial structure premised on the instant concession agreement cannot be deemed as having difficulty in normal operation of the white tunnel solely on the ground that it differs from the financial structure premised on

③ Although there was a lack of financial values, such as the Plaintiff’s capital erosion in excess of KRW 130.6 billion as of December 31, 2012, it is difficult to conclude that the normal operation of the white tunnel is difficult without changing the Plaintiff’s financial structure as of the time of the instant disposition, taking into account the unique characteristics that the Korea Infrastructure Fund, a shareholder of the Plaintiff, practically holds the Plaintiff’s position as a lender (i.e., the Maqui Infrastructure Investment Company transferred its loan claims against the Plaintiff for asset securitization in the form of formality, but actually has the Plaintiff’s position as a lender).

④ As long as the structure of funds by a project implementer does not violate the minimum equity capital ratio necessary for stable operation of build-transfer-lease projects, it is reasonable to deem that it falls under management techniques of the project implementer. Therefore, inasmuch as there are no special circumstances, such as violation of the minimum self-employed ratio necessary for stable operation of build-transfer-lease projects, ordering the competent authority to change the fund structure of the project implementer into a specific fund structure in the form of a supervisory order ought

⑤ Furthermore, the instant disposition does not coincide with the adjustment of the minimum import guarantee rate (MRG) arising from the previous consultation between the Plaintiff and Busan Metropolitan City or from the audit and inspection results of the Board of Audit and Inspection. In other words, even if the Plaintiff’s financial structure is changed as ordered by the instant disposition, the Plaintiff’s financial status is improved (such as seen earlier, difficult to deem that the current financial status of the Plaintiff has deteriorated as soon as it is necessary for the normal operation of the facility), and thereby, does not decrease in the MRG to be paid to the Plaintiff or reduce the tolls of the MRG. Rather, according to the Defendant’s data, it cannot be deemed that the improvement of the Plaintiff’s financial structure or the instant concession agreement would not result in a decrease in the number of tolls more than that of the Plaintiff’s funds under the instant concession agreement, on the premise that MRG would have been established at the level of 8.28% of the business profit rate under the instant concession agreement while acquiring the Plaintiff’s shares, even if the Plaintiff calculated tolls at the level of maintaining it, it cannot be deemed that the Plaintiff’s financial structure or the instant concession would not be altered.

3. Conclusion

Therefore, without examining the remaining arguments of the plaintiff, the plaintiff's claim is justified, and ex officio order the suspension of the disposition of this case to order the suspension of validity.