[도로점용료부과처분취소][공1994.11.1.(979),2884]
(a) Where any land category is occupied and used as a road or a site which has no route approval under the Road Act, the Acts and subordinate statutes governing the calculation of relevant usage fees;
(b) The case reversing the judgment of the court below on the ground that the enforcement period of Article 23-2 of the Seoul Special Metropolitan City Ordinance on the Management of Public Property concerning the reduction of user fees was not examined
A. In a case where the land category occupies and uses a road or a site which does not have a route approval under the Road Act, the land is not a road subject to the Road Act but a public property subject to the Local Finance Act. Therefore, the calculation of the usage fee and the calculation of the usage fee should be based on Articles 83 and 82 of the Local Finance Act, Article 92 of the Enforcement Decree of the Local Finance Act, and Article 23(1) of the Seoul Special Metropolitan City Ordinance on Public Property Management.
(b) The case reversing the judgment of the court below on the ground that the enforcement period of Article 23-2 of the Seoul Special Metropolitan City Ordinance on the Management of Public Property was not examined in calculating the usage fees of public property subject to the
(a)Article 83 and Article 82 of the Local Finance Act, Article 92 of the Enforcement Decree of the same Act, Article 23(1)(b) of the Seoul Special Metropolitan City Ordinance on the Management of Public Property; Article 2 of the Seoul Special Metropolitan City Ordinance on the Management of Public Property;
Plaintiff
Attorney Hak-dae, Counsel for the defendant-appellant
Seoul High Court Decision 93Gu13980 delivered on December 15, 1993
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below recognized the fact that the plaintiff occupied and used 181 square meters of 61 square meters of 1991 square meters of the road of Guro-gu Seoul Metropolitan Government, which is the public property of Guro-gu Seoul Metropolitan Government from 1986, and the defendant imposed the user fee for the above occupation portion on the plaintiff as of April 12, 1993, that the land category of the occupation portion is an administrative property that has lost its function as a road as a road under the Road Act, and Article 83 and Article 82 of the Local Finance Act and Article 92 of the Enforcement Decree of the Local Finance Act and Article 23 (1) of the Seoul Metropolitan Government Ordinance on Public Property Management (amended by Ordinance No. 2917 of May 12, 192; hereinafter referred to as the "Ordinance"), and determined that the above provision on the usage fee of this case was not applied to the portion of this case, since the above regulation was newly implemented on the basis of the officially assessed individual land price under Article 23 of this Ordinance.
However, as the defendant is the person, the land in this case is not a road subject to the Road Act, but a public property subject to the Local Finance Act, so it is not a road subject to the Road Act, and it should be subject to the Enforcement Decree of the Local Finance Act and the above Ordinance. Thus, if Article 2 of the Addenda of the above Ordinance provides that "the provisions of Article 23-2 shall apply to the decision of rent (including rent and indemnity) after November 10, 1990," the provisions of Article 23-2 of the above Ordinance shall also apply to the imposition of rent for the year 191, unless there are special circumstances. Thus, the court below erred in the misapprehension of the judgment by failing to properly examine the enforcement period of the provisions of Article 23-2 of the above Ordinance, which affected the conclusion of the judgment. Thus, the argument on this point is with merit.
Therefore, the judgment below is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Yong-hun (Presiding Justice)