1. As to the law applicable to the calculation of occupation charges of the road of this case

A. Article 41(2) of the former Road Act (amended by Act No. 10580, Apr. 12, 2011) provides for matters necessary for the collection of occupation and use fees, such as standards for calculation of occupation and use fees to be collected from persons occupying and using roads with permission from the road management agency, shall be prescribed by Presidential Decree in cases of national highways, and other roads by ordinances of local governments which belong to the road management agency, within the scope

Article 42(2) of the former Enforcement Decree of the Road Act (amended by Presidential Decree No. 22386, Sept. 17, 2010; Presidential Decree No. 24205, Nov. 27, 2012) which was in force during the period of occupation and use of the instant road (from January 1, 2011 to December 31, 201) provides that the standards for calculating occupation and use fees for roads other than national roads shall be prescribed by the ordinance of the relevant local government within the scope of the standards for calculating occupation and use fees prescribed in attached Table 2. [Attachment Table 2] standards for calculating occupation and use fees according to the type of objects of occupation and use under [Attachment Table 2]. With respect to the occupation and use fees for gas stations, etc., the land price shall be calculated by multiplying the land price by 0.02, and the previous officially assessed individual land price under the Act on Land (excluding any site adjoining the road) shall be calculated by the Presidential Decree No. 2016, Feb. 27, 2007.

Meanwhile, according to the delegation of Article 41(2) of the former Road Act and Article 42(2) of the former Enforcement Decree of the Road Act, the former Yangcheon-gu Seoul Metropolitan Government Ordinance on Permission to Occupy and Use and Collection of Occupancy Charges, etc. (amended by Ordinance No. 1016, Dec. 20, 201; hereinafter “the former Yangcheon-gu Ordinance”) which had been enforced during the occupation period of the road in this case, the occupation charges for the roads, such as gas stations, etc., are calculated as “amount obtained by multiplying the land price by 0.025” under Article 3 and [Attachment 1] of the Enforcement Decree of the Road Act. The land price in this case was determined as “the officially assessed land price under the Public Notice of Values and Appraisal of Real Estate Act” (hereinafter “the provisions of the former Yangcheon-gu Ordinance”). The provisions of the former Yangcheon-gu Ordinance on the Construction and Evaluation of Real Estate within the scope prescribed by the former Enforcement Decree of the Road Act, which is not inconsistent with the amended Enforcement Decree of the Road Act.

B. As can be seen, the purport of the Yangcheon-gu Ordinance provision of this case, which was implemented during the occupation period of the road, is to determine whether the provision of the former Yangcheon-gu Ordinance is illegal or invalid as inconsistent with the provisions of the former Enforcement Decree of the Road Act, and to stipulate matters necessary for the collection of occupation and use fees, such as the standards for calculation of occupation and use fees of Article 41(2) of the former Road Act, by Presidential Decree, and by ordinances of local governments, which belong to the management agency of the road, within the scope prescribed by Presidential Decree, is to ensure that each local government can separately regulate occupation and use fees of roads which are not national highways according to the same contents throughout the country, rather than uniformly regulating them according to the specific circumstances of the region. Therefore, the “standards for calculation of occupation and use fees” prescribed by Presidential Decree under Article 41(2) of the former Road Act refers to the upper limit of occupation and use fees which can be prescribed by the ordinances of each local government. Thus, the Yangcheon-gu Ordinance provision of the former Ordinance does not coincide with the provisions of the former Enforcement Decree of the Road Act.

Ultimately, the provisions of the Yangcheon-gu Ordinance on the occupation and use of the road of this case are lawful and effective in the same purport, and in light of the contents, form, and purpose of Article 41(2) of the former Road Act, it is reasonable to view that the provisions of the Yangcheon-gu Ordinance on the occupation and use of a road of this case, other than national highways,

C. In the same purport, the lower court was justifiable to have determined that the provisions of the Yangcheon-gu Ordinance shall apply to the calculation of usage fees of the instant road, which is not a national highway, within the scope of the calculation standard of usage fees under the former Enforcement Decree, and there was no error by misapprehending

2. As to the calculation standard of occupation and use of the road of this case

The lower court’s determination to the effect that the instant site for gas stations cannot be deemed as being used for the same or similar purpose as the main purpose of use of the instant road, which was used as an access to the relevant gas station for the purpose of access to the gas station, is justifiable (see, e.g., Supreme Court Decision 2009Du12730, Feb. 11, 2010). In so doing, the lower court did not err by misapprehending the legal doctrine on the standards for calculating road occupation fees.

3. Conclusion

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 on the bench.

Justices Park Poe-young (Presiding Justice)