[도로점용료부과처분취소][공1992.11.1.(931),2894]
The case holding that it does not constitute a special occupation and use of a road to install a superior Esplate at a nearby lot department store in the pre-existing Seoul Metropolitan Government Esponsing Station;
The case holding that in a case where the construction of a superior-line escalator is conducted in order to enhance convenience in passage along with the installation of an underground connecting passage connecting the subway station with the underground floor of the above department store after obtaining permission from the Seoul Special Metropolitan City in the nearby department store, and after going through an agreement with the subway Corporation, the construction of an underground connecting passage to the above department store, and the construction of a superior-line escalator is conducted in order to promote convenience in passage along with the installation of an underground connecting route connecting the above department store, the former stairs used by the general public are used along with the passage passage of the persons entering the above department store at the same time as the construction of the above underground connecting passage, the above escalator cannot be deemed to have occupied and used a road because it is for the general use of the underground road and it is difficult to view that it is for the special use.
Articles 80-2 and 40 of the Road Act
Booking Corporation and one other plaintiffs, et al., Counsel for the plaintiff-appellant-appellee
Attorney Jung-gu, Seoul Metropolitan Government
Seoul High Court Decision 90Gu16797 delivered on October 29, 1991
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
On the first ground for appeal
In light of the records, the fact-finding of the court below is justified, and there is no error in the rules of evidence or incomplete hearing.
It is stipulated that the occupation and use fees shall be imposed on the part of the road occupation and use under the conditions of approval of the certificate of donation No. 2 (the completion of donation) since it is only applicable to the part of the road occupied by the plaintiff. Therefore, there is no error of incomplete deliberation like the theory of lawsuit
Therefore, there is no reason to discuss.
On the second ground for appeal
1. According to the facts found by the court below, after obtaining permission from the defendant on October 21, 1987 and completing an agreement with the Seoul Metropolitan Government subway Corporation on February 23, 198, the plaintiffs were in possession of Eul-ro railway station and the lot department store connections with the first floor of the new department store building in order to promote the convenience of traffic in parallel with installing underground connections connecting the first floor of the new department store building, and completed construction on December 31, 198 of the existing department store entrance stairs, and completed the construction of the above construction on December 31, 198. The defendant imposed the charges for the occupation and use of the existing department department, and completed the construction from the beginning of the construction on the road department at the expense of the plaintiffs, and the maintenance and management of the sknter shall be performed by the plaintiffs, but the plaintiffs shall not be in compliance with the terms and conditions of the permission to use the facility, and the plaintiffs shall not be in compliance with the terms and conditions of the permission to use the facility from 200-day to the general department store.
2. If the facts are as above, the plaintiffs are just in the judgment of the court below that the stairs used by the general public do not use the above underground connecting passage along the construction of the above underground connecting passage and the passage route of the persons who have access to the building owned by the plaintiffs, and the above KS is installed in the part of the entrance stairs in order to promote the convenience of traffic in the above part of the entrance stairs, and it is used as it is for the general use of the underground road, and it is difficult to see that it is for the special use of the plaintiffs, and it is difficult to see that the plaintiffs occupied and used the road in the part of the installation of the blade, and there is no error of law by misunderstanding the legal principles of the Acts and subordinate statutes concerning the occupation and use of roads
3. According to the result of the verification by the court below, it is reasonable to view that the underground connecting the first floor of the underground floor of the building of the department store department store is the way to enter the department store, and it is reasonable to view that the plaintiff scam shopping company occupies and uses the above entrance stairs. However, sclates are installed between the two existing stairs, which are allowed to enter the roads on the ground from the subway station of the ground, and play a role in supplementing the above entry stairs. This is merely because they are allowed to be used by the persons entering the department store in the B-ro railroad station, and this part of the roads cannot be said to be occupied and used by the plaintiffs.
Of course, if this blade is owned by the plaintiffs or for the special use of the plaintiffs, it can be deemed that the plaintiffs occupy and use this part of the road. However, according to the above, it cannot be deemed that this part of the road is intended for the special use of the plaintiffs. According to the facts acknowledged by the court below, the plaintiffs were permitted to make a donation to Seoul Special Metropolitan City immediately after the completion of the KS. Thus, even if this blade is not the plaintiff, it cannot be deemed that it is due to the refusal of the Seoul Special Metropolitan City. Thus, since this part of the road is installed by this blade, it cannot be deemed that the plaintiffs occupy and use this part of the road.
4. Whether there is the same facility as theory on both inner walls, ceiling, or entrances of the above underground stairs is a matter different from the occupation and use of the above escalators.
Therefore, there is no reason to discuss.
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.
Justices Kim Jong-soo (Presiding Justice)