(영문) 대구고등법원 1989. 9. 20. 선고 87구161 판결[도로부당이득금부과처분취소][판례집불게재]
Busan Traffic Co., Ltd. and 5 others (Attorney Seo-ho, Counsel for the plaintiff-appellant)
Jinju Market (Attorney Jin-Do et al., Counsel for the plaintiff-appellant)
August 16, 1989
The litigation of this case shall be dismissed.
Litigation costs are assessed against the plaintiffs.
Each disposition taken by the defendant against the plaintiffs on December 16, 1986 on the imposition of unjust enrichment equivalent to the amount equivalent to road occupation and use fees, such as the statement of imposition in the attached Form, shall be revoked. The litigation cost shall be borne by the defendant
In accordance with Article 80-2 of the Road Act, the fact that the defendant has imposed unjust enrichment equivalent to the amount of the road occupation and use fees, such as the claim, on the ground that the defendant occupies and uses part of the road located in Jin-si-dong-dong-dong-si, which is managed by the defendant without obtaining permission to occupy and use the
Before determining the merits of the plaintiffs' assertion, the first priority is to examine ex officio whether the lawsuit of this case was instituted through legitimate pre-trial procedure, and according to Article 80-2 of the Road Act, the collection of unjust enrichment from a person who occupied and used a road without permission shall be based on the method of collecting road occupation and use fees under Articles 43 and 35 (2) of the same Act, and pursuant to Article 130 (3) and (5) of the Local Autonomy Act (amended by Act No. 4004 of April 6, 198), if the person who received the disposition of imposition of occupation and use fees, etc. corresponding to the road usage fees is deemed to have been illegal or erroneous, it shall be allowed to raise an objection to the head of the local government who issued the disposition of this case within 10 days from the date of receipt of the notice, and it shall be 16 days from the date of receipt of the request for imposition of unjust enrichment to the defendant, and it shall be 16 days from the date of submission of the above disposition of imposition of unjust enrichment.
Therefore, the plaintiffs' lawsuits in this case are illegal lawsuits filed without due process of the pre-trial trial. Thus, without examining the merits, they shall be dismissed without entering the merits, and the costs of lawsuit shall be borne by the plaintiffs who have lost them as per Disposition.
September 20, 1989
Judges Song Jin-hun (Presiding Judge)
[Attachment Omission (Details of Imposition of Additional Benefits)]