(영문) 서울중앙지방법원 2014.3.21. 2014카합80128 결정

1. The part that seeks the prohibition of permission for use of the departure place and the duty-free shop in the application of this case shall be dismissed;

2. The remaining motion of the obligee is dismissed;

3. The costs of lawsuit shall be borne by the obligee.

Purport of application

1. The debtor shall not suspend the tender procedures and continue to continue the tender procedures pursuant to the "C International Passenger Terminal Departure Permit (Selection Tender) Public Notice")" announced by the public notice B of March 3, 2014.

2. The debtor shall not proceed with the following procedures with respect to the above bidding, such as granting permission to use the departure points and duty-free shops listed in paragraph (1) to a limited liability company D.

Reasons

1. Case summary

According to the records, the following facts are proved.

(a) Construction works for establishing a F International Passenger Terminal in an election under paragraph (5);

1) G (hereinafter referred to as “G”) and H (hereinafter referred to as “H”) obtained permission from the Administrator of the Incheon Regional Maritime Affairs and Fisheries Agency for the construction of F International Passenger Terminal within the Eth election (hereinafter referred to as the “instant construction”).

2) On March 30, 201, G, and H, a creditor drafted a written agreement with the creditor to share KRW 3 billion out of the construction cost of the instant construction project (Evidence 3). On April 12, 2001, the head of Incheon Regional Fisheries Administration changed the implementer of the instant construction project from G, H to G, H, and creditor (Evidence 4) to a non-management authority’s permission to implement a harbor construction project (Evidence 4).

3) The instant construction was completed on April 10, 202, and the head of the office of the Incheon Regional Maritime Affairs and Fisheries E-port Construction Office notified G, H, and creditors of the fact that the total project cost of the instant construction was KRW 10,962,626,00 (Evidence 5).

(b) Coverage of construction expenses;

1) On August 30, 2002, G, H, and creditor requested the director of the Incheon Regional Maritime Affairs and Fisheries Office to compensate for the total project cost of the instant construction project amounting to KRW 10,962,626,00 (Evidence 6). On the same day, the director of the Incheon Regional Maritime Affairs and Fisheries Office notified the director of the Incheon Regional Maritime Affairs and Fisheries Office to compensate for the project cost as follows (Evidence 7).

A person shall be appointed.

2) On September 30, 2002, a creditor requested that the user fee of five harbor facilities used at the time of the creditor be deducted for 27.76 years. On October 1, 2002, the director of the Incheon Regional Maritime Affairs and Fisheries Office notified creditors of the following purport that the creditor would take measures to preserve (Evidence 8-1, 2).

A person shall be appointed.

3) Since then, the amount to be preserved for the international passenger terminal in J port was KRW 0,00,000, and the amount to be preserved for the C International Passenger Terminal was changed to KRW 215,839,490 (Evidence 10,000).

4) The creditor was exempted from total of KRW 111,032,780 from usage fees for duty-free shops at port international passenger terminals from around 2003 to March 28, 2014.

C. On February 27, 2014, the non-permission obligee for the extension of the permission for the use of the instant duty-free shop requested the head of A head of A to extend the permission for the use of the instant duty-free shop from March 29, 2014 to the due date for investment preservation expenses. However, the head of A head of A replyed on March 11, 2014 to the creditor to deny the extension of the permission for the use of the instant duty-free shop (Evidence 9, 10).

D. On March 3, 2014, the head of the instant public notice of tender was publicly announced “(C) permission to use the international passenger terminal departure duty-free shop” in the public notice B of the agency A on March 3, 2014.

2. Summary of reasons for the application;

On October 1, 2002, the official text of the Incheon Regional Maritime Affairs and Fisheries Office sent to a creditor on October 1, 2002 (Evidence No. 8-2) is interpreted as the official text regarding permission to use the international passenger terminal usage fee to creditors until the amount reserved is preserved. Therefore, the creditor holds the right to use the C International Passenger Terminal departure exemption point (hereinafter referred to as the “Tax Exemption point”) as long as the amount preserved for the C International Passenger Terminal remains.

In addition, since from 2002 to 2002, since the creditor obtained permission for the use of duty-free shops and their affiliated facilities in the port without going through a separate competitive bidding, the creditor has been given the right to use until the due date, so it can be viewed that the creditor has given the right to use until the due date. Therefore, the bid in this case infringes the applicant's trust.

Therefore, since the bid of this case violates the creditor's right to use the duty-free shop of this case or violates the principle of trust protection, it is necessary to seek provisional disposition such as the purport of the application.

3. Determination

A. Since the part of the application of this case concerning the prohibition of permission to use duty-free shops of this case, the preservative measure under the Civil Procedure Act is the right to be protected by the civil judgment procedure, it is not permissible to seek a prohibition of any administrative act of an administrative agency by a provisional disposition under the Civil Procedure Act (see, e.g., Supreme Court Order 92Ma54, Jul. 6, 1992).

The creditor is seeking a prohibition of subsequent procedures, such as granting permission to the debtor for the use of the duty-free shop in this case. Among them, the part seeking the prohibition of permission for the use of the duty-free shop in this case is limited to the right of the competent authority to the civil provisional disposition, and it cannot be deemed as being permitted. Accordingly, the application for this part is unlawful.

B. Claim concerning permission for use with indefinite time limit

1) Relevant statutes

Article 9 of the former Harbor Act (amended by Act No. 838 of April 6, 2007; hereinafter the same shall apply) (Executor, etc. of Harbor Works)

(2) If a person who is not a managing authority (hereinafter referred to as a “managing authority”) intends to execute the harbor works, he shall prepare the harbor works plan and obtain permission from the managing authority in accordance with the Presidential Decree: Provided, That this shall not apply to the maintenance and repair works of the harbor facilities which are not subject to the ownership of the State or a local government under the

Article 17 (Reversion, etc. of Harbor Facilities)

(1) The land and harbor facilities created or installed by the harbor works of a non-management agency under Article 9(2) shall be reverted to the State or a local government at the time of completion, except for land and harbor facilities prescribed by the Presidential Decree.

(3) A non-management agency may gratuitously use harbor facilities that have vested in the State or a local government pursuant to paragraph (1) within the scope of total project costs, as prescribed by Presidential Decree.

Article 27 (Port Facilities, User Fees, etc.)

(1) A person who intends to use harbor facilities (excluding waterway signs; hereafter the same shall apply in this Article) may, under the conditions as prescribed by the Presidential Decree, enter into a lease contract with the managing authority or the person delegated or entrusted by the managing authority with the operation of harbor facilities (hereinafter referred to as the "operator of harbor facilities"), or obtain approval from the person who has entered into the lease contract concerned (hereinafter referred to as the "lease contractor"): Provided, That any person who intends to use harbor facilities determined by the managing authority shall report it to the managing

(2) The operator or lessee of harbor facilities may collect rental fees from those who use the harbor facilities pursuant to paragraph (1): Provided, That he may exempt any person prescribed by the Presidential Decree from such rental fees in whole or in part.

former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 19879 of Feb. 8, 2007)

Article 19 (Free Use, etc. of Converting Harbor Facilities)

(1) A person who intends to gratuitously use harbor facilities reverted to the State or a local government pursuant to Article 17 (3) of the Act shall report thereon to the managing agency in advance.

(2) The period during which a free use of the harbor facilities may be used under paragraph (1) shall be the time until the sum of the usage fees under each of the following subparagraphs reaches the total project cost calculated under Article 18. In such cases, the usage fees of the harbor facilities to be applied in calculating the period of free use of the harbor facilities shall be the basis for the usage fees of the harbor facilities in question in cases of subparagraphs 1 and 2 and the usage fees at

1. Rent in cases where the harbor facilities reverted to the State or local governments are used commercially;

2. Charges for the use of harbor facilities collected from others under Article 28 of the Act;

3. The rent in the case of using the harbor facilities for which the rent is exempted pursuant to the provisions of Article 21 (1) 8;

Article 21 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 19174 of Dec. 9, 2005) (Exemption from User Fees of Harbor Facilities)

(1) The whole or part of the usage fees may be exempted pursuant to the proviso of Article 27 (2) of the Act in the following cases:

8. Where a user uses other harbor facilities than the harbor facilities concerned for the conservation of the total project cost required for the construction of harbor facilities reverted to the State or the local government under Article 17 (1) of the Act;

2) Determination

Article 17(1) and (3) of the former Harbor Act provides that the harbor facilities created or installed by the harbor works of a non-management authority shall revert to the State or a local government upon completion of construction, but the non-management authority shall be able to use the relevant harbor facilities free of charge within the scope of the total project cost. Meanwhile, Article 27(1) and (2) of the former Harbor Act and Article 21(1)8 of the former Enforcement Decree of the Harbor Act (amended by Presidential Decree No. 19879, Feb. 8, 2007) provide that a person who intends to use the harbor facilities shall obtain permission, etc. from the management authority, and a person who intends to use other harbor facilities may be exempted from the user fee in whole or in part if he/she uses other

Therefore, the creditor can be deemed to be entitled to acquire the right to use free of charge within the scope of the total project cost with respect to the instant duty-free shop, which is not the pertinent harbor facility, but rather the right to use free of charge cannot be deemed to have been acquired.

The official text of the Incheon chief of a regional maritime affairs and fisheries office sent to creditors on October 1, 2002, stating each amount of compensation for each international passenger terminal. As such, each international passenger terminal is expected to be exempted from user fees within the limit of the amount of each preservation, and it cannot be deemed that the purpose of the permission for the use of each international passenger terminal was to allow creditors to use the fees until the amount of preservation is preserved (a creditor is deemed to have extended the period of use with the permission for the use of the duty-free shop of this case granted by the head of A head of each regional maritime affairs and fisheries office on October 1, 2002, and the size of the creditor's use was changed).

Therefore, the obligee’s assertion on the premise that the obligee was permitted to use the duty-free shop of this case with the indefinite time limit is without merit.

The creditor asserts that the bid of this case is in violation of the principle of trust protection even though the creditor presented a public opinion that the debtor granted the right to use until the due date of the project cost. The above argument is unlawful since the non-permission to extend the permission to use the duty-free shop of this case by the head of A head of A head of A violates the principle of trust protection, it is interpreted that the creditor is illegal on the premise that the right to use

A creditor claims the right to use harbor facilities as a preserved right (section 1). Even if the head of A head of A, as alleged by the creditor, presumed that a disposition denying the extension of the period of use to a creditor violates the principle of trust protection and thus illegal, the creditor cannot be deemed to hold the right to use the duty-free shop in this case unless the permission for use was taken. Therefore, the creditor's request for this part is insufficient to vindicate the preserved right

In addition, even if the creditor's assertion is illegal because the non-permission extension disposition on the duty-free shop of this case violates the principle of trust protection, and thus, the creditor can seek provisional disposition on the premise that the right to use the future may be preserved for the creditor's right to use the future, it is difficult to conclude that the creditor has a public opinion that the creditor would extend the permission to use the tax-free shop of this case by the time of the exhaustion of the project cost for the future, solely on the ground that the debtor has granted permission to use the tax-free shop of this case several times to the creditor.

4. Conclusion

Therefore, the part of the application of this case seeking the prohibition of permission to use the duty-free shop of this case is unlawful, and thus, the remaining applications are dismissed as it is without merit. It is so decided as per Disposition.

March 21, 2014