Whether a person who has obtained permission to occupy and use public waters is obligated to pay occupancy and use fees regardless of whether he/she actually occupied and used public waters (affirmative)

Article 9(1) of the former Public Waters Management Act (repealed by Act No. 10272, Apr. 15, 2010); Article 13(1) of the Public Waters Management and Reclamation Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Dong Man Island Co., Ltd. (LLC LLC, Attorneys Ansan-gu et al., Counsel for the defendant-appellant)

Head of the Busan Metropolitan Government Maritime Affairs Office

Busan High Court Decision 2011Nu1603 decided December 16, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Ground of appeal No. 1 and ground of appeal No. 2 as to violation of the good faith principle

A. Article 9(1) of the former Public Waters Management Act ( repealed by Article 2 of the Addenda to the Public Waters Management and Reclamation Act, effective October 16, 2010; hereinafter the same) and Article 13(1) of the Public Waters Management and Reclamation Act (hereinafter “Public Waters Act”) provide that where the management agency of public waters grants permission to occupy and use public waters, or consults or approves to occupy and use public waters, it shall collect occupancy and use fees every year from those who obtained permission to occupy and use public waters, etc. as prescribed by the Presidential Decree.

The term “use or use of public waters” refers to the so-called special use of a specific part of public waters separately from the general use (see Supreme Court Decision 2002Da68485, Oct. 15, 2004, etc.). Permission to occupy or use public waters is a disposition that establishes exclusive right to use public waters for a specific part of public waters (see, e.g., Supreme Court Decision 2002Du5016, May 28, 2004). In consideration for such exclusive right, the above legal provisions provide that the person who has obtained permission to occupy or use public waters should collect occupancy or use fees from the person who has obtained permission to occupy or use public waters, and do not provide that the person who has obtained such permission shall be liable to pay occupancy or use fees regardless of whether it actually occupies or uses public waters (see, e.g., Supreme Court Decision 2002Du68485, Oct. 15, 2004).

In addition, according to Article 40(1)7 of the former Act on the Special Cases concerning the Regulation of the Special Economic Zone for Specialized Regional Development (amended by Act No. 9763, Jun. 9, 2009; hereinafter “Local Special Zone Act”), the specialization project operator is deemed to have obtained approval of the special zone plan including the land use plan for the special zone, and is deemed to have obtained permission to occupy and use public waters under Article 5 of the former Public Waters Management Act and approval of the implementation plan under Article 8 of the same Act.

B. According to the reasoning of the lower judgment and the evidence duly admitted, the Minister of Knowledge Economy, on January 11, 2010, determined the period of permission to occupy and use public waters of this case as “2010-2040” and publicly notified by the Plaintiff, etc. as “the period of permission to occupy and use public waters of this case,” including the details of designating private enterprises such as the Plaintiff as a special project implementer for each unit project pursuant to the Local Special Zone Act.

C. Examining these facts in light of the legal provisions and legal principles as seen earlier, the Plaintiff is deemed to have obtained permission to occupy and use the public waters of this case from January 11, 201 through the approval of the amendment to the above regional specialized development zone plan. Therefore, the Plaintiff is obligated to pay occupancy and use fees from January 11, 2010, regardless of whether the public waters of this case were actually occupied and used due to other reasons.

Therefore, the judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error of law that affected the conclusion of the judgment on the ground that the court below erred in interpreting the timing of calculating occupancy or use fees in violation of the principle of prohibition of extended interpretation or in violation of the principle of good faith

2. As to the third ground for appeal

As seen earlier, Article 13(1) of the Public Waters Act provides for the collection of occupancy or use fees of public waters as prescribed by the Presidential Decree. Article 13(4) of the Enforcement Decree of the Public Waters Act delegated by the Minister of Land, Transport and Maritime Affairs shall re-determine the payment period of occupancy or use fees and other matters concerning the collection of occupancy or use fees. Accordingly, Article 11(1) of the Enforcement Rule of the Public Waters Act provides for the specific collection period of occupancy or use fees.

In full view of the diversity of occupancy and use types of public waters, complexity of the method of imposing occupancy and use fees, expertise, etc., it is necessary for the administration to flexibly regulate matters concerning occupancy and use fees in accordance with changes in society, economic situation, and marine policies. Therefore, it is recognized that it is necessary to delegate matters concerning the imposition of occupancy and use fees and use fees of public waters to Presidential Decree, etc., such as Article 13(1)

In addition, considering the legislative purpose and relevant provisions of the Public Waters Act, and the legal nature of occupancy and use permission and usage fees, it can be predicted that the calculation method and standards of occupancy and use fees will be determined according to the purpose and form of occupancy and use permission within the permitted period of occupancy and use under the Enforcement Decree and the Enforcement Rule of the Public Waters Act, and that the degree of impact on the public interest purpose, marine environment and the ecosystem may be considered in the calculation of occupancy and use fees, and as seen above, the period of imposition of occupancy and use fees can be the starting date of the permitted period of occupancy and use.

Therefore, in light of this, as otherwise alleged in the grounds of appeal, Article 13(1) of the Public Waters Act or Article 11(1) of the Enforcement Rule of the same Act does not violate the Constitution by violating the principle of prohibition of comprehensive delegation, the principle of prohibition of excessive delegation, or the principle of substantial taxation (see Constitutional Court Order 2012Hun-Ba16, Sept. 26, 2013).

3. As to the principle of protection of trust among the second grounds for appeal

In general, in administrative legal relations, in order to apply the principle of the protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the object of trust to the individual, second, the administrative agency should have no reason attributable to the individual when the above opinion list is justifiable and trusted, third, the individual should have trusted the above opinion list, and third, the administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the above opinion list so that the interests of the individual who trusted the opinion list may be infringed, and last, when taking an administrative disposition in accordance with the above opinion list, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see Supreme Court Decision 2004Du46, Jun. 9, 2006, etc.).

(1) The court below rejected the Plaintiff’s assertion that the principle of trust protection should apply to the public notice sent by the Defendant to the Plaintiff upon the approval of the instant implementation plan, on the ground that it is reasonable to deem that (1) the public notice sent by the Defendant to the Plaintiff stating that “the imposition of public charges, etc. to be paid at the time of the commencement report,” and that the meaning is not the time of the commencement report, but the starting date of the calculation of occupancy and use fees should be the time of the commencement report. Therefore, it is difficult to deem that the Defendant expressed its opinion to impose occupancy and use fees from the time of the commencement report.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors of abuse of discretion by violating the principle of

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)