1. In full view of the contents and nature of Articles 76, 77, and legislative purport of the former Road Act (wholly amended by Act No. 12248, Jan. 14, 2014; hereinafter “former Road Act”), in cases where road works are required due to other construction works or acts and appurtenant construction works are required due to such other construction works or other acts, the person liable to bear all or part of the costs of appurtenant construction works under Articles 77(2) and 76 of the former Road Act, i.e., the person liable to bear the costs of other construction works or acts, where it is deemed that the causing person may bear the costs of appurtenant works, applying the main sentence or proviso to Article 77(1) of the former Road Act, to the extent that the person liable to bear the costs of appurtenant works cannot be determined by applying the main sentence or proviso to Article 77(1) of the same Act (see, e.g., Supreme Court Decisions 2009Da56757, Jun. 24, 2010>

2. According to the reasoning of the judgment of the court below and the judgment of the court of first instance partially accepted by the court below, since the Plaintiff performed the instant drainage facility construction to promptly discharge rainwater flowing into the road of this case, even if the drainage facility installed by the Plaintiff as part of the drainage facility construction for the instant drainage facility function as a road management authority, in light of the circumstances as stated in its reasoning, the Plaintiff’s drainage facility installed by the Plaintiff constitutes part of the instant road as an accessory facility of the instant road. Accordingly, the Plaintiff’s construction of the instant drainage facility constitutes a road construction. Accordingly, since the instant gas pipeline construction constitutes another construction, the Defendant, whose usage fee was reduced and exempted pursuant to the proviso of Article 77(1) of the former Road Act, should bear not only all costs of the instant gas pipeline construction, but also, due to the Plaintiff’s existence of the instant road, should be borne by the Defendant by preferentially applying Article 77(1) of the former Road Act, not the Sewerage Act.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following circumstances are revealed.

(1) The instant drainage system was implemented as part of the Plaintiff’s construction of the 9-year-long-distance 2010-year-long flood control (hereinafter “the instant flood control construction”). On July 16, 2009, the instant drainage system was implemented as part of the Defendant’s construction of the instant flood control area (hereinafter “the instant flood control area”). The instant flood damage occurred due to the lack of drainage facilities, such as drainage pumps and drainage pipes, which enable adequate discharge of rainwater flowing into the flood control area, due to the lack of drainage facilities such as the drain pumps and drain pipes, and the improvement measures accordingly required to expand or improve drainage facilities in the flood control area.

(2) The main purpose of the instant drainage facility construction is to prevent flood damage as above.

Based on the history and analysis, a plan was formulated for the settlement of flood areas and the protection of residents' property and the creation of a pleasant living environment. At the time, the road was not built, reconstructed, or repaired for the purpose of restoring the function of the road of this case damaged by concentrated rain.

(3) The main contents of the instant flood settlement work were to set up a drainage pump and a drainage pipe in the vicinity of the flood area. Accordingly, the Plaintiff started the construction of a drainage pumps near the one-lane flood area, and started the construction of the instant drainage facilities, i.e., the installation of the drainage pipe and the drainage pipe, which are the public sewerage in the underground surrounding the flood area. In the process, excavation and molding of the instant road were conducted, and the instant gas pipes were again required to do so.

(4) The Plaintiff planned and publicized the instant flood area solution construction including the instant drainage facility construction in a major business plan, Gu administration white book, etc. in 2010, as a sewage facility improvement project, river project, or disaster prevention project. The Plaintiff registered and managed the drainage room installed by the instant drainage facility construction and the sewage culvert register, not the drainage pipe and the drainage pipe road register.

(5) Meanwhile, it appears that the proportion of the part relating to the drainage route installed on the instant road among the flood area mitigation works or the instant drainage facilities construction works was insignificant. At the time, it is difficult to find out that the drainage facilities construction of the instant road intended to recover the function of the instant road damaged by the concentrated rain, or that it was implemented with its own independent purpose of ensuring the function of drainage facilities of the instant road itself.

B. Examining these circumstances in light of the legal principles as seen earlier, the instant drainage facility construction is not a road construction executed for the purpose of restoring or improving the function of the road through the construction, reconstruction, or repair of the instant road, separate from the instant flood control construction, but rather a part of the instant flood control area construction implemented for the purpose of constructing or maintaining a new public sewerage system, and its basic nature constitutes a public sewerage construction works. Such other construction works require road construction and its appurtenant works, which are necessary for the instant gas pipeline construction. In such a case, the costs for the instant gas pipeline construction, namely, the costs for appurtenant works, by applying the main sentence or proviso of Article 77(1) of the former Road Act, shall not be designated.

4. Nevertheless, the court below held that the Defendant should bear the costs of the instant gas pipeline construction under the main sentence or proviso of Article 77(1) of the former Road Act by deeming the instant drainage facility construction as the road construction solely for the reasons stated in its reasoning. In so doing, the court below erred by misapprehending the meaning of road works or the legal principles on the interpretation and scope of application of Article 77(1) of the former Road Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is

5. Furthermore, in granting permission to occupy and use urban gas pipes removed from the construction of the instant gas pipes, the conditions on the burden of appurtenant construction costs as asserted by the Plaintiff cannot be deemed to have been added, and even if such conditions were attached, the road structures due to other construction works as in the instant case.

6. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young