[도로부지점용허가취소처분등취소][공1974.2.1.(481),7696]
The case holding that "if it is deemed to seriously harm the public interest" as stipulated in Article 2 of the Administrative Vicarious Execution Act shall be applicable.
(1) The Seoul Special Metropolitan City had the Plaintiff use the road site as the water reservoir and playground, but the Plaintiff constructed an unauthorized building on the site of the road without permission at the time of permission, but at the present time, there is a need to use the road site as the road because of the concentration of housing in the vicinity of the road at the time of permission, as well as the need to use the road site as the road. If the land which was partially interrupted by the Plaintiff’s occupation and use of the road is abandoned in a road area which was partially interrupted by the Plaintiff’s occupation and use of the road and neighboring residents pass by bypassing it to the neighboring private land, such situation is re-scheduled, barring any special circumstances, to remove or reduce the necessity for the public interest or the public interest under Articles 74 and 75 of
(2) If the Plaintiff owns an unauthorized building on a road for which permission to occupy and use was lawfully revoked, it is interpreted that the failure to perform the duty to remove the building is extremely detrimental to the public interest.
United States Forest and Trade Corporation
Attorney Park Young-young, Counsel for the defendant-appellant
Seoul High Court Decision 72Gu134 delivered on November 29, 1972
The judgment below is reversed and the case is remanded to Seoul High Court.
Judgment on the grounds of appeal by Defendant’s Attorney
(I) First, we examine the revocation of the permit for occupation and use of road site in the judgment below.
According to the records, the disposition of permission to occupy and use the site of this case was replaced every year since 1967, and its purpose was to be used as a simple water reservoir and playground, but at the present site of the above occupancy and use road, the building owned by the plaintiff was constructed, and it is still in violation of the conditions of permission to occupy and use the road (No. 2-3 of the certificate of permission and the conditions of permission No. 11 and No. 14 of the conditions of permission). In addition, it is still necessary to use the site of this case as the original purpose of the road because the house was located in the vicinity of the above road at the time of the initial occupancy and use of the site of this case, but it is necessary to use the site of this case as the original purpose of the road because of the plaintiff's occupancy and use of the road as recognized by the court below, and if part of neighboring residents passed bypassing the road and invaded the surrounding private interest, it is not reasonable to interpret that the above disposition of permission to occupy and use the road is not necessary for public interest or to reduce the above legal principles.
(A) Next, we examine the decision of the court below as to the cancellation of the order of succession.
If the plaintiff owns an unauthorized building on the site of a road that the defendant intends to serve in the general public (the permission for occupation and use was revoked), it shall be reasonable to interpret that the failure to perform the duty to remove the building is extremely detrimental to the public interest unless there are special circumstances, unless there are any errors in the revocation of the permission for occupation and use. Thus, the judgment of the court below is erroneous in finding otherwise that the requirements for mooring and disposal are not satisfied in this case, and it is reasonable to discuss this issue.
Since all arguments are reasonable, the original judgment shall be reversed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Byung-ho (Presiding Justice)