(영문) 서울행정법원 2019.6.20.선고 2018구합69134 판결

1. It is confirmed that between the Plaintiff and the Defendant, the Plaintiff (attached Form 1), the Plaintiff has the right to use the above 1 line free of charge until the amount exceeds 27,676,30,00 won and the amount exceeds 28,147,781,332 won, in sequence of 1,2,3,4,5,6,6,7,7,88,9, 10,11, 12, located in Ulsan-gun Group B located in Ulsan-gun, Ulsan-gun, Ulsan-gun.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. On December 27, 2005, the defendant (the head of the DNA agency) made a public announcement of the selection of a non-management authority's project implementer for the construction of a harbor by reclaiming the sea surface in the Ulsan-gun Eri-ri, Ulsan-si (hereinafter referred to as "F construction project") in order to enable private enterprises to carry out the project. Among them, the construction contents and the applicant's attention are as follows.

A person shall be appointed.

7. The applicant's personal information. The project operator shall commence and complete the construction works at an appropriate time designated by the Korean office in order to reduce the budget and facilitate the implementation of construction works, and shall not delay any construction works unless a natural disaster occurs, and shall take all legal and administrative sanctions, such as the designation of the project operator and the revocation of the permit for the implementation of the harbor works, if the project has obstructed the implementation of the project, such as the increase of construction costs, due to a delay in construction works, etc., and the project operator shall not raise any objection against such designation;

B. The Plaintiff organized a consortium with G Co., Ltd. and participated in the F Construction Project implementer selection procedures. The Defendant, on June 27, 2006, selected a consortium with the Plaintiff and G Co., Ltd. as the project implementer of the Port Project No. 1 (hereinafter “instant Construction”) on June 27, 2006, and permitted the execution of harbor works pursuant to Article 9(2) of the former Harbor Act (amended by Act No. 8379, Apr. 11, 2007; hereinafter the same), and the main contents of which are as follows.

1.The name of this Corporation shall be H. 2. The execution site of this Corporation shall be the full sea location of P.O. E in Ulsan-si, Ulsan-si, the scale of this Corporation shall be as follows, and the detailed content shall be as follows: Provided, That if the scale of the construction changes, it shall be implemented after obtaining approval from our Office.

4. The facilities to be installed as a result of the construction are as follows: ①, 7, 8, 8, and 5, 4, 100 square meters from the inner wall shall belong to the State, and the site other than the inner wall shall belong to the State, and 6: 6, 50 meters from the inner wall. 6, 5: The inner wall and the surrounding site shall be reverted to the State. 6, 5, 5, the project shall be reverted to the State. Since the basic design is not implemented after the Ulsan Basic Harbor Plan was announced after November 4, 2005, the basic design service for the entire project area shall be first implemented after the permission for the construction, and the project shall be implemented in accordance with the construction plan (the necessity and feasibility of railroad entry, electricity, water supply and drainage, gas, green belt facilities, etc.) and other plans for the implementation of the project, and the project shall be implemented in an efficient way to reduce the construction cost and the implementation plan of the project shall be implemented at the same time after consultation with the project operator.

C. Around June 26, 2008, the Plaintiff established a plan for the implementation of a harbor project and applied for its approval to the Defendant. The Defendant approved the plan on August 14, 2008. The main contents of the plan are as follows.

The execution period of the project, including 240m (2DW X 1m), 95,970m2 of land preparation, and other auxiliary facilities: The project implementer shall comply with the approval terms and conditions for the implementation of the project, and the matters provided for in other Acts and subordinate statutes in relation to the implementation of the project shall be executed after lawful procedures have been taken into account to the relevant government agencies, and no later than November 30, 2008, the implementation plan shall be completed within five days after the commencement date of the project, and the implementation plan shall be completed within 240m (2DW X 1m2m2), 95,970m2, and 36m2, including the designation of the head of the agency responsible for the implementation of the project, the project implementer shall comply with the direction of the implementation plan or the change of the execution plan, and the project implementer shall also submit an order or the change of the execution plan to the competent administrative agency within 5 days after the completion date of the project, including the order of the project, the change of the implementation plan.

The official report shall be submitted to the management agency for confirmation of completion, and the related documents for the determination of total project cost among the required documents shall be jointly reviewed and sealed by the Construction supervisor and the company to which he/she belongs.(2)(5) The project implementer under paragraph 9 of the terms and conditions of permission and the related project implementer shall establish a process plan between neighboring seats and submit it at the time of commencement of the consultation, and the additional expenses incurred due to the delay

D. As above, the Plaintiff commenced the instant construction project on August 1, 2009 after obtaining approval for the implementation plan for a harbor project by the Defendant. On January 1, 2011, the construction was interrupted and resumed on June 4, 2012, and was completed on August 31, 2013. Accordingly, the Defendant issued the confirmation certificate of completion to the Plaintiff on September 30, 2013, as follows.

A certificate of completion: The type of Ulsan Port Construction Work (H Construction Work): The construction site of the Civil Works (H) : the front sea area (date of completion): the front sea area (date of completion): Ulsan-gun E-ri, Ulsan-gun: from August 1, 2009 to August 31, 2013: 240 meters (date of reversion) for the contact facility (240 meters for 2DW Grade 1) and the site reclamation 95,873.62 [State]

E. As above, 240m (2DW 1m) was constructed on the instant construction site and reclaimed land 95,873.6m2 was newly created. Pursuant to Article 17(1) and (3) of the former Harbor Act and Article 17(1) of the former Harbor Act and Article 4(1) of the former Conditions for granting a permit to implement the said harbor works, this shall belong to the State at the same time as completion, and the Plaintiff was able to gratuitously use the 1m2 as indicated in the Disposition No. 1 within the scope of the total project cost.

F. From August 1, 2009 to August 31, 2013, the Plaintiff calculated the interest rate of construction of the instant construction project in total of 1,492 as KRW 1,459,252,894, and on September 27, 2013, the Plaintiff filed an application for KRW 28,239,449,203 as the total project cost with the Defendant on September 27, 2013, but the Defendant notified the Defendant that only KRW 27,676,30,00 (including construction interest of KRW 987,71,562) out of the total project cost applied by the Plaintiff on November 6, 2013 on the following grounds.

The review of the total project cost calculation results from the review of the project cost: Interest on construction (13 months) during the project period extended following the discontinuance of construction ( January 1, 201) pursuant to paragraph (5) of the special matters concerning the conditions for the approval of the execution plan of the main construction project (the additional expenses incurred due to the delay of construction between the adjoining stone shall not be included in the total project cost) excluding interest on the construction period subject to application of paragraph (1) (13 months: the beginning).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 and 2 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The discontinuance of the instant construction work occurred due to force majeure that is not attributable to the Plaintiff, such as the commencement of construction works by 'T' and 'T', which are the project implementer of 2 lines. Paragraph (5) does not apply to the case where the project period is extended without any cause attributable to the project implementer. Therefore, the interest rate during the construction period extended following the discontinuance of the instant construction work should be included in the total project cost. As such, even though the interest rate during the construction project is KRW 1,459,252,89, including the portion incurred due to the delay of construction, among the total project cost of the Plaintiff, the Defendant recognized only KRW 987,771,562, the difference of KRW 471,481,332, which is the total project cost. Accordingly, the Plaintiff’s right to verify KRW 27,676,300,000,000, plus the above KRW 471,432,371,281,371.

2) The defendant's assertion

Paragraph (5) of Paragraph (5) of the condition of the approval of the execution plan for the instant construction project provides that "the project implementer shall prepare a work plan between neighboring stone lines, submit it at the time of the commencement of the construction works, and the additional expenses incurred due to the delay in the construction works shall not be included in the total project cost." Thus, the additional expenses incurred due to the failure in the process plan between neighboring stone lines

Even if not, the Plaintiff did not commence the construction until November 30, 2008, which was the deadline for commencement, and applied for the postponement of the construction after December 5, 2008, and even if it could have extended the deadline for commencement through a review or consultation with I and I and the project implementation status, which was the project implementer of tin harbor project, on December 2, 2008, and even if it was possible to extend the deadline for commencement by consultation, it cannot be deemed that there was no cause attributable to the Plaintiff for delay of construction.

Therefore, the plaintiff's claim of this case is without merit on the premise that the additional cost incurred due to the delay of work is included in the total project cost.

(b) Fact of recognition;

1) Each project implementer of the F Construction Project shall proceed with the F Construction Project of the relevant line by reclaiming the surface of the water, after blocking the inflow of the water from the outside sea water by water, and also by reclaiming the surface of the water. If the said construction project is conducted separately, there is a concern that the project implementer will use soil in the area of the planned site of the stone reclaimed by the relevant project implementer due to the seawater flowing into the adjacent planned site. Therefore, it was necessary to simultaneously proceed with each other in order to reduce the budget and facilitate the construction project.

2) On September 4, 2008, the Defendant initially selected I as the implementer of the tin Port Project No. 2, and approved I’s implementation plan on September 4, 2008. On September 18, 2008, the Defendant submitted a written request for postponement that “The period of commencement of construction shall be extended by November 30, 2008” to the Defendant on the ground that the conditions that “the construction shall be commenced by November 30, 2008,” would be determined depending on the progress of the tin Port on the three adjacent lines. Therefore, the period of commencement of construction shall be extended by November 30, 209.”

3) On December 5, 2008, after five days from November 30, 2008, which was the due date for the commencement of the project under the approval of the implementation plan, the Plaintiff requested the Defendant to postpone the construction on the ground that the actual commencement date (No. 2: the actual commencement date of the construction, the period of non-approval of the implementation plan No. 3) of the neighboring stone closely related to the construction progress is unclear, and to smoothly promote the project by establishing a plan for raising the required funds due to the liquidity aggravation of the financial market. However, the Defendant urged the Plaintiff on December 22, 2008, and the implementor of the harbor project No. 2, 3, 7, 8, and 9.

4) 2번 선석 항만공사의 사업시행자인 I은 당시 피고에게 책임감리 선정 요청을 하지 않았을 뿐만 아니라, 해당 항만공사를 수행할 시공사조차 선정하지 않은 상태였다. 이에 따라 원고는 다시 2009. 2. 23. 피고에게 "◎ 공사관련(인접 선석과의 관계) 문제점 - 2번 선석: 착공여부 불투명, 3번 선석: 실시계획 미승인. 항만청 및 관련 선석과 공사 관련 문제점에 대한 구체적이고, 현실적인 협의기간이 공사 착수 전에 필수적으로 선행되어야 할 것으로 판단. ◎ 금융시장 유동성 악화 - 안정적인 소요자금 조달계획 확보 중(소요기간 추가 필요)"이라고 기재된 추진계획을 첨부하여 착공 연기 요청을 하였으나, 피고는 2009. 5. 8. 원고와 2, 3, 8, 9번2) 선석 항만공사의 사업시행자들에게 2009. 5. 22.까지 공사 착수를 촉구하면서, 착공이 계속 지연될 경우 시행허가 취소 등 행정조치를 취할 것이라고 예고하였다.

5) The Defendant had an interview four times from May 12, 2009 to May 13, 2009 through the Plaintiff’s wire telephone, and the main contents of which are as follows.

Until May 22, 2009, the Ministry of Land, Infrastructure and Transport may request the project permission department to cancel the project (Plaintiffs) by the commencement of the project, which is deemed to require the construction of a dynasium in the process of implementing the project. The construction of a dynasium is required (the port construction department and the construction of a dynasium) to reflect the cost of creating a dynasium in the process of implementing the project, since the matters requiring the construction of a dynasium are matters after 16 months have elapsed since the commencement of the project in the scheduled process, it

6) According to the defendant's demand, I responded to the defendant on May 22, 2009 that "I will select and submit the construction company to the defendant by September 2, 2009." On May 22, 2009, the plaintiff submitted the commencement date to the defendant on May 22, 2009, and started construction on August 1, 2009 after the plaintiff submitted the commencement date to the defendant.

7) At the C Construction Work Process Meeting held on June 4, 2009, I presented an opinion that I would promptly determine whether to implement the project, and the defendant expressed a plan for future measures that "I will examine the administrative measures in accordance with the relevant provisions through the permission department for implementation with respect to a business operator who has no business will among the undeveloped individual projects (2, 3, and 8 seats), and implement a continuous inspection of the status of the implementation of the project through the fair meeting, etc."

8) Ultimately, on April 21, 2010, the Defendant revoked I’s license to implement a harbor construction project on the ground that the project is delayed, such as the commencement of construction works, etc.

9) While continuing the instant construction, the Plaintiff was unable to carry out construction work related to the instant construction work on December 15, 201, when the Plaintiff was unable to carry out construction work related to the instant construction work, due to the seawater flowing into the planned site of 2 lines, and the outflow of earth and sand in the planned site of 1 line, which was buried by the Plaintiff. As such, on December 15, 2010, the Plaintiff notified the Defendant of the discontinuance of the instant construction and suspended construction work on January 1, 201.

10) On April 6, 2011, the Defendant selected AD Co., Ltd. as a new project implementer of AD Co., Ltd., and conducted the instant construction work on June 4, 2012 to a certain extent, including the establishment of DD Co., Ltd.., Ltd., and the Plaintiff resumed the instant construction work on June 4, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 7 through 21, Eul evidence Nos. 3 through 8, the purport of the whole pleadings

C. Paragraph 9 of the terms of permission for construction works of this case as to whether construction costs incurred due to delay is included in the total project cost or not shall be promoted simultaneously for the efficient process management, reduction of construction costs, enhancement of utilization of facilities, etc. as the project connects nine seatss. Thus, facilities of a bank must be excluded from the facilities of a bank at the present stage, and after re-examination of the project implementation period by consultation between the project operator to efficiently implement the project with the approval of our government, the implementation plan shall be reflected in the implementation plan so that the project can be implemented by taking into account the following matters, such as reclamation soil securing limit, Kson's utilization plan, and breakwater construction process being promoted by the Government. Paragraph 5 of the terms of approval for the implementation plan provides that "The project operator related to Paragraph 9 of the terms of permission and paragraph 9 of the same Article shall prepare and submit an adjacent tin plan at the time of consultation and submission, and the additional expenses incurred due to delay shall not be included in the total project cost, and it shall not be included in the total project cost in the objective interpretation and application scope of the following special provisions:

It should be reasonably interpreted that such a legal principle applies to the interpretation of Paragraph (5) of the above special conditions of approval of implementation plan, ② Paragraph (5) of the above special conditions of approval of implementation plan, and additional expenses incurred due to delay of conditions without complying with the existence or absence of causes attributable to the project operator concerned, and if interpreted not to be included in the total project cost, it should be excessively harshly responsible for the project operator's failure to determine or make a decision, which is contrary to the principle of proportionality, the principle of self-responsibility, and ③ Article 18 subparagraph 6 of the former Enforcement Decree of the Harbor Act clearly violates the principle of proportionality, the principle of self-responsibility, and ③ Article 18 subparagraph 6 of the former Enforcement Decree of the Harbor Act provides that where the project period is extended due to causes attributable to the Ordinance of the Ministry of Oceans and Fisheries, such as where the project operator intentionally delays construction costs or fails to obtain confirmation of completion at the time specified in the implementation plan due to gross negligence, it is reasonable to recognize the extension of the project period as the total project cost only to the project operator without any special causes attributable to the project operator or other reasons attributable.

D. Whether there is any cause attributable to the Plaintiff regarding the delay in the process

1) Construction interest rates are problematic as to whether an application for postponement of construction has been filed for five days late from the commencement date without the commencement date until the commencement date. Thus, even if the Plaintiff did not commence construction until November 30, 2008, which was the first commencement date, and even if the Plaintiff filed an application for postponement of construction after December 5, 2008, which was the first commencement date, there is no relation between such circumstance and whether the instant construction suspension or construction interest has accrued. Accordingly, the Defendant’s aforementioned assertion on a different premise cannot be accepted.

2) As to the commencement of construction on August 1, 2009 after submitting the start date of construction on May 22, 2009 and the commencement of construction on August 1, 2009, the following facts revealed in the facts of the above recognition: ① the Defendant refused the Plaintiff’s repeated request for postponement of construction; ② the Plaintiff, May 8, 2009, urged the Plaintiff, etc. to start construction until May 22, 2009, and notified the Plaintiff, etc. to take administrative measures, such as cancellation of permission; ② the cost and time spent up until the start of construction; ② the Plaintiff’s refusal of the Defendant’s demand is in fact impossible; ③ the Plaintiff’s refusal of such demand is likely to not be able to postpone the submission of the second start date due to consultation with the Plaintiff, etc. ④ The Plaintiff’s submission of the start date of construction on May 22, 2009 to the Plaintiff, and the Plaintiff’s demand for the commencement of construction work on the ground of this case’s postponement or demand cannot be accepted.

3) [The following circumstances that can be known in the above recognition that the plaintiff did not review and consult on the construction schedule, etc. : ① the neighboring 2-line implementer at the time when the plaintiff started the construction of this case not only did not select the construction of the adjacent 1-line implementer but also did not do so, so it was impossible for the plaintiff to consult about the specific individual process between I and I, as well as the overall future schedule; ② even if the plaintiff started the construction of the above 1-line construction, it is inevitable to delay the construction due to the failure of the adjacent 2-line construction schedule, even if the plaintiff started the construction of the above 1-line construction, and ③ the defendant did not request the plaintiff to immediately start the construction of this case regardless of the progress of the construction schedule 2-line 1-line construction, and the plaintiff could not request the new construction schedule and the new construction schedule 4-line 1-line 1-line 2-line construction plan to suspend the construction of the new 1-line construction schedule, and the plaintiff could not demand the new construction schedule construction of this case.

4) Sub-committee

Ultimately, the instant construction project is not attributable to the Plaintiff, but suspended due to the delay in the implementation of the project, such as the failure of I, the cancellation of the Defendant’s permission to implement the harbor project against I, and the designation of a new project implementer. Therefore, it is reasonable to deem that Paragraph 5 of the special matters regarding the approval of the implementation plan does not apply to the instant case. Therefore, the additional interest rate arising from the delay in the process is included in the total project cost, which is the standard for

E. Scope of the Plaintiff’s right of free use

Inasmuch as the interest rate calculated by the Plaintiff on the premise that additional construction interest arising from the delay is included in the total project cost, the Plaintiff’s construction interest rate is KRW 1,459,252,89, and the Defendant does not specifically dispute the above amount itself, it is clear that the total project cost related to the instant construction project within the scope sought by the Plaintiff is KRW 28,147,781,332 (=i.e., total project cost of KRW 27,676,30,000 + the total project cost of KRW 27,676,30,000 + the interest rate of KRW 1,459,252,894 calculated by the Plaintiff - the construction interest of KRW 987

Therefore, the Plaintiff is entitled to use the above 1 line free of charge until the total project cost of KRW 27,676,300,000 recognized by the Defendant exceeds KRW 28,147,781,332, and as long as the Defendant is disputing this, there is a benefit to seek confirmation.

3. Conclusion

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