(영문) 서울행정법원 2014.4.29.선고 2013구합57457 판결

1. It is confirmed that between the Plaintiff and the Defendant, the Plaintiff has ownership over the land exceeding KRW 34,429,80,000, out of the land indicated in the separate sheet, and up to KRW 45,049,93,525.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The head of Ulsan-do Maritime Port Authority (hereinafter referred to as the "head of Ulsan-do Maritime Port Authority") determined that the construction of a port in the front sea area of Ulsan-do, Ulsan-si, Ulsan-si, Ulsan-si, Seoul-si, shall be conducted by private enterprises (hereinafter referred to as the "construction project of Ulsan-do Maritime Port Area"). On December 27, 2005, the head of Ulsan-do Maritime Port Authority (hereinafter referred to as the "head of Ulsan-do Maritime Port Authority") decided that the construction of a port in the front sea area of Ulsan-do Do -

B. The construction project of the Southern Port District is to reclaim the sea to create a site for the landing facility and its hinterland, and the total project cost of the Plaintiff’s 84.4 billion won (4.4 billion won, No. 43.5 billion won, and No. 41.1 billion won), and the construction period was publicly announced for four years from 2006 to 2009. On the other hand, the g of the applicants for the designation of the project implementer of the above non-management authority is connected to the above project, and the project is to start and complete the construction project at an appropriate period designated by the Korean office for the purpose of reducing the budget and promoting the construction project smoothly, not to delay the construction work unless a natural disaster occurs, and to take all legal and administrative sanctions, such as the designation of the project implementer and the cancellation of the permission for the implementation of the harbor project, and any objection may not be raised against this.

C. The plaintiff organized a consortium with Samsung Heavy Industries (hereinafter referred to as the "Tsung Heavy Industries") and participated in the procedure of selecting a project implementer for the construction of the Southern Sea Zone. The head of the Ulsan Port Office selected the plaintiff and Samsung Heavy Industries consortium as the project implementer of the construction project on June 27, 2006 (hereinafter referred to as the "construction project of this case"), and permitted the plaintiff's harbor construction plan and construction work pursuant to Article 9 (2) of the former Harbor Act (amended by Act No. 7678 of Aug. 5, 2006), and the part related to this case is as follows.

1. The name of this Corporation shall be "Slsan New Port (1-2 Stage) Construction Works".2. The execution location of this Corporation shall be the full marine application location of Ulsan-si, Ulsan-si, Ulsan-si, Seoul-si, the scale of this Corporation shall be as follows, and its detailed details shall be limited to the application design document: Provided, That in the case of changes in the scale of the Corporation, it shall be executed after obtaining the approval of our Office.

4. Under the provisions of Article 17 of the Harbor Act and Article 17 (1) of the Enforcement Decree of the same Act, the facilities to be installed as follows. (A), ①, 7, 8, and 4 shall revert to the whole State of the inner wall and site, ②, ③, 4, and 5 tin: The inner wall shall revert to the State, and the outer site shall be reverted to the State. 6 The inner wall and the site shall be reverted to the State. 6. Since the basic design has not been implemented after the Ulsan Basic Plan was revised public notice (as of November 4, 2005), the basic design service for the entire project area shall be first implemented after the permission for the execution of the construction work and the installation plan (as of November 4, 2005, the construction cost of the railroad, water supply and drainage system, gas, green belt facilities, etc.) of the project shall be reflected in the construction plan of the project in advance, and if necessary, the project operator shall also implement the project in an efficient way to reduce the construction cost of the project.

D. On June 26, 2008, the Plaintiff established a harbor project implementation plan and applied for approval to the Administrator of Ulsan Port Office. The Administrator of Ulsan Port Administration approved the implementation plan of the harbor project on August 12, 2008 pursuant to Article 10(2) of the Harbor Act, and the part related to the case is as follows.

Outline. Location: 58,401,00,000 won (Reversion: 6,627,000,000, non-Reversion 51,774,000,000) for the project: 540m (50,74,000,000) for the Contact Facility, 187,962 for the site development, and other auxiliary facilities, etc.: 36 months from the date of commencement of the project;

(a) The project implementer shall comply with the terms and conditions of this approval, and will implement this construction after taking lawful procedures with respect to this construction work.2) This project shall take place on November 30, 2008, taking into account the period of supervision after approval of the implementation plan, the period of selection of the contractor, etc. and the period of designation of the contractor, and shall submit to the head of the Ulsan regional Maritime Affairs and Port Authority (including the period of commencement of construction work, contract and specifications, on-site representatives, the selection of inspectors, the estimated progress table, etc.) a report on the commencement of construction work (including the date of commencement of construction work, on-site representatives, the selection of inspectors, the estimated progress table, etc.) within five days after the commencement of the construction work, and shall submit an additional report on the completion of construction work pursuant to the approved execution drawings and specifications to the management authority, and if any significant change in the implementation plan occurs, the project implementer shall submit an additional report on the completion of construction work to the Minister of Construction and Transportation along with an order to verify the implementation plan and the necessary order.

E. The Plaintiff commenced construction on October 13, 2008 after obtaining approval of the execution plan related to the instant construction project from the head of Ulsan Port Office. After that, the Plaintiff changed the project cost to KRW 32,791,00,000 by means of selecting a constructor to perform the instant construction project through bidding, and the construction period to KRW 32,791,00,000, and the construction period was reduced to December 31, 2010. On the other hand, the Plaintiff applied to the head of Ulsan Port Office for an amendment to include the “construction on the basis of the storage facility for liquid cargo” in the instant construction project. The head of Ulsan Port Office approved it on June 28, 2010 (i) (i) the project cost was reduced to KRW 58,401,00,000 from KRW 32,791,000,000 from KRW 32,58,000,000,009).

F. Meanwhile, around July 13, 2010, the Plaintiff’s progress in the construction project of this case was 76%. Since the commencement of the construction of the sea water distribution system located on the boundary of 3 lines and 4 lines due to the internal situation of the consortium, which is the executor of the construction project of this case, was delayed due to the delay in the construction of the sea water distribution system located on the boundary of 3 lines and 4 lines, the Plaintiff could no longer proceed with the construction project.

G. Accordingly, on December 30, 2010, the head of Ulsan Port Administration approved the Plaintiff to revise the implementation plan to extend the completion date of the instant construction project from December 31, 2010 to December 31, 2011. On April 13, 2011, the Plaintiff added the construction of one type of sea water distribution district in four lines to build one type of sea water distribution district in four lines, and on April 13, 201, approved the amendment of the implementation plan to change the project cost from KRW 37,814,00,000 to KRW 47,814,00,000.

H. On December 27, 201, the head of Ulsan Port Administration again approved an implementation plan to change the project cost of KRW 642,00,00 in consideration of the additional installation of retaining walls in the landscape zone and the air required for follow-up processes after the installation of a sea water distribution channel, and the project cost of KRW 47,172,00,000 for the extension of construction period of six months, and the completion date of construction to June 30, 201. In addition, on June 26, 2012, the head of Ulsan Port Administration has increased the construction cost of KRW 996,00,000 for the storage of liquefied cargo, and excluded from the implementation plan to change the project cost of KRW 48,168,00,00 for each additional installation of retaining walls in the landscape zone. Meanwhile, the head of Ulsan Port Administration calculated the additional implementation plan to the Plaintiff on June 12, 2010, and the total project cost of the Corporation’s implementation plan to be approved on June 21, 21, 2013.

(i) Around June 29, 2012, the Plaintiff completed the instant construction project and submitted a report on the completion of harbor works to the head of Ulsan Port Office on August 1, 2012 as follows:

비관리청 항만공사 준공보고서항만명 : 울산항공사의 종류 : 토목○ 공사장소 : 울산광역시 울주군 온산읍 이진리 전면 해상○ 공사규모 : 접안시설 540m(5만DWT급 2선석), 부지조성 188,016.7㎡, 부대시설 1식공사목적 : 항만시설 건설 및 운영총공사비 : 48,109,600,000원(부가가치세 포함)공사기간 : 착공 2008. 10. 13. 준공 2012. 6. 29.귀속시설명세 : 임항도로 12,915.5㎡, 조경 8,263.7㎡ , 빈지 105㎡※ 비귀속부지 166,732.5

(j) As the result of the instant construction project, 540m (50,000 WT 2m, hereinafter referred to as “instant harbor facilities”) was newly constructed in total 188,016.7m (including the vacant land 105m). Of the instant land, land created in the form of a road and land created in the form of a green belt shall belong to the State, and part of the 166,732.5m square meters of land, which is not vested in the State, shall belong to the Plaintiff in return for the total project cost paid by the Plaintiff, and the remainder shall belong to the Defendant.

The Plaintiff filed an application with the head of Ulsan Port Office for the amount of KRW 9,158,85,644, and the amount of KRW 48,717,697,282, which shall be reverted to the State (land creation) as the total project cost. However, on May 16, 2013, the head of Ulsan Port Office notified the head of Ulsan Port Office of his/her intention to recognize only KRW 8,158,60,00,00 among the total project cost applied by the Plaintiff, and KRW 34,429,80,000 among the total project cost applied by the Plaintiff on the following grounds.

The application shall be filed by reflecting the expenses incurred in the construction of all non-revertible facilities except for supervision expenses, reclamation soil unit cost increase, additional management expenses, temporary office expenses, price increase, construction interest) due to the delay in the implementation of the project (4th tin circulation) and the extension of the project period (18 months), and additional expenses (18 months) in the total project cost (i.e., the total project cost).

Pursuant to Paragraph 5 (Special Matters concerning the Ordinance of the Ministry of Land, Transport and Maritime Affairs) of Article 18 of the Enforcement Decree of the Harbor Act, the project implementer shall acquire the ownership of the reclaimed site within the scope of the total project cost used for the construction of the relevant land in the form of land, so the cost of the construction of the revertible facility is not recognized as total project cost * the cost of the construction of the revertible facility in the form of land * the cost of the revertible facility in the form of public waters reclamation and management by the Board of Audit and Inspection on March 3, 2010, the total project cost of the reclamation project shall not be limited to the total project cost of the construction project (the additional cost incurred from delay in the process between folds) and the implementation plan of the construction project, which reflects the total project cost of the construction project (the total project cost shall not be included in the total project cost of the construction project). Thus, the total project cost of the reclamation project shall not be limited to the total project cost of the 00th project cost of the construction project (the total project cost of the 00th project cost).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10, Eul evidence Nos. 1 and 2 (including branch numbers), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

Although the construction project of this case was scheduled to be completed on December 31, 2010, the construction project of this case was planned to be completed on December 31, 2010, the construction project of this case was not commenced at the scheduled time due to the internal situation, etc. of the consortium, which is the project implementer of the 3th line and the 4th line, which is located between the 3th line and the 4th line. As a result, the construction project of this case, which is premised on the completion of the construction project of this case, was impossible, and the completion date becomes 18 months or later than the first implementation plan. Paragraph 5 of the special condition of the approval of the execution plan, provides that the additional expenses incurred due to the delay in the execution plan, which is not included in the total project cost, shall not be deemed to include the construction cost incurred due to the delay in the execution plan, regardless of the responsibility for the delay in the execution plan, and it shall be interpreted to apply only to the party responsible for the delay in the execution.

As can be seen, the total project cost of the instant construction project is KRW 45,049,93,525, including the additional cost incurred from the delay in the process, and the Defendant (the head of Ulsan Port Office) recognizes only KRW 34,429,80,00,00,00, the difference of KRW 10,620,133,525, also should be recognized as the total project cost of the non-reverted land. Therefore, the land equivalent to KRW 45,049,93,525, out of the land listed in the separate sheet, is owned by the Plaintiff and the Defendant. As such, the Plaintiff’s lawsuit in this case confirms that the Plaintiff has ownership over the land exceeding KRW 34,429,80,00,00 in excess of KRW 34,429,93,525, out of the land listed in the separate sheet.

(2) The defendant's assertion

Although the Plaintiff’s construction project in this case was delayed due to the reasons attributable to the consortium, which is the operator of 3 tin and 4 tin located between 3 and 4 tin, and the additional expenses were incurred therefrom, the additional expenses incurred due to the delay in the process is not included in the total project cost. Thus, the additional expenses incurred due to the delay in the process shall be borne by the relevant project operator and shall not be included in the total project cost. Accordingly, the claim of the Plaintiff in this case is without merit on the premise that the additional expenses incurred due to the delay in the process are included in the total project cost.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

(1) Paragraph (9) of the Port Project Plan and Paragraph (9) of the terms and conditions of the permission for the construction project of this case regarding the construction project of this case shall be promoted simultaneously for efficient process management, reduction of construction costs, enhancement of the utilization of facilities, etc. as the project connects nine seats to the project. Thus, it shall be excluded from the provisional facilities at the present stage, and it shall be reflected in the implementation plan after re-examination of the project implementation period for each stone through consultation between the project operator so that the project operator can efficiently implement the project, taking into account the future plan for securing reclamation, the plan for utilization of the site for manufacturing, and the construction of breakwater in progress by the government, etc., and Paragraph (5) of the terms and conditions of the approval for the implementation plan of this case shall be reflected in the implementation plan with the approval of the Korean government.

④ Whether additional costs incurred due to delay in construction are determined by the scope of application of Paragraph 5 of the Enforcement Decree of the Harbor Act. However, even though Paragraph 5 of the same Article does not impose any restriction on the scope of application of the above provision, the following circumstances, i.e., the interpretation of legal acts clearly state the objective meaning given by the parties to the act of labeling, i.e., the motive and background leading up to the occurrence of legal acts, the purpose of the construction by the parties to the construction and the genuine intent of the construction, and the practice of the construction, are not consistent with the principles of non-management authority’s interpretation of Paragraph 5 of the Harbor Act to the extent that it is unreasonable to reasonably interpret the same based on the principles of logic and experience, and the principles of non-management authority’s interpretation of the same Act to the extent that it is unreasonable for the State to recognize the total project cost to be excluded from the total project cost per se to the extent of the total project cost per se for reasons attributable to the operator’s non-management authority to the extent of the total project cost per se.

According to the above facts, around July 13, 2010, when the progress ratio of the Plaintiff’s construction project of this case was 76% and around July 13, 2010, due to the delay in the commencement of the construction of sea water distribution area located at the boundary of 3 tin and 4 tin, which is the main contractor, due to the inside situation of the consortium, etc., the Plaintiff could no longer proceed with the construction of this case. Accordingly, without the Plaintiff’s cause, the construction period of this case was extended without the Plaintiff’s cause, and additional costs were incurred to the Plaintiff. Thus, the construction period of this case is extended due to reasons not attributable to the Plaintiff, which is the project operator.

As such, it is reasonable to deem that Paragraph (5) does not apply to this case because of the fact that Paragraph (5) of the condition for approval of an execution plan does not apply to this case. Therefore, additional expenses incurred due to delay in the process of a consortium shall be included in the total project cost, which is the standard for calculating the scope of the land acquired by the Plaintiff in return for the construction project.

(2) Calculation of a reasonable total project cost for non-reverted land

According to Gap evidence No. 10, among the plaintiff's application amount, it can be acknowledged that the total project cost of the non-verted land recognized by the head of the Ulsan Port Office is 106,036,773, and the total project cost of the investigation cost of KRW 498,751,860, and ② design cost of KRW 24,281,92,753, and construction cost of KRW 288,49,120, and ⑤ construction interest of KRW 1,42,569,937, 62,717,516,050, and KRW 3,094,607, and KRW 34,429,80,000,00 in total.

Meanwhile, in full view of the purport of the argument in Gap evidence No. 10, the total project cost for the portion of the land owned by the plaintiff, which is owned by the plaintiff, on the premise that the additional cost for the delay of construction is recognized as the total project cost, shall be KRW 106,036,73, ② the design cost of KRW 518,096,750, ③ the construction cost of KRW 29,924,069,125, ④ the incidental cost of KRW 3729,729,782,419, ⑤ the construction interest of KRW 3284,268,693, 693, 693, 627, 798, 707, 74,059, 81, 258, 409, 93, 93,525, and the defendant also did not specifically dispute the above amount. Thus, the total project cost related to the construction project in this case shall be included.

(3) Sub-decisions

Therefore, the Plaintiff acquires the ownership of the land equivalent to the total project cost for the instant construction project, excluding roads, parks, vacant lots, etc. to be reverted to the State. As such, the part equivalent to KRW 45,049,93,525 of the land indicated in the separate sheet among the land indicated in the separate sheet is owned by the Plaintiff. As long as the Defendant acknowledges only the amount equivalent to KRW 34,429,80,000 of the land listed in the separate sheet, the Plaintiff may seek confirmation of the ownership of the land up to KRW 34,429,80,00 of the land listed in the separate sheet, exceeding KRW 34,429,80,00 of the land listed in the separate sheet.

3. Conclusion

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