[도로점용부당이득금부과처분취소][공1986.7.15.(780),886]
In case where a road installed as a result of a land readjustment project is occupied and used without permission, the collection of unjust enrichment under Article 80-2 of the Road Act.
The provisions of Article 80-2 of the Road Act shall apply mutatis mutandis to roads established by urban planning projects under Article 10 of the same Act and Article 10-2 of the Enforcement Decree of the same Act. Thus, if a road established by a land readjustment project implemented as one of the urban planning projects is occupied and used without permission, it shall be deemed a road to collect the amount equivalent to unauthorized occupancy and use fees as unjust enrichment insofar as it is a road used for general traffic even if it is practically difficult to distinguish the adjacent site.
Articles 10 and 80-2 of the Road Act, Article 10-2 of the Enforcement Decree of the Road Act
Plaintiff-Appellee et al., Counsel for defendant-appellee
The head of Gangnam-gu Seoul Metropolitan Government
Seoul High Court Decision 84Gu1094 decided August 19, 1985
All appeals are dismissed.
The costs of appeal shall be assessed against each appellant.
The grounds of appeal are examined.
1. As to the Plaintiff’s ground of appeal
According to Article 80-2 of the Road Act, with respect to a person who occupies and uses a road without obtaining permission to occupy and use the road under Article 40 of the Act, the amount equivalent to the occupation and use fees for the period of occupation and use shall be collected in the same manner as unlawful gains. This provision shall apply mutatis mutandis to a road constructed by an urban planning project under the Urban Planning Act pursuant to Article 10 of the Road Act and Article 10-2 of the Enforcement Decree of the same Act (other than Article 2 of the Road Act as prescribed by the Road Act). Thus, the decision of the court below is just to determine that the road is a road established by a land readjustment project implemented by the defendant as a part of an urban planning project and the parcel number and land category are completed on April 10, 1982 and the amount equivalent to the unauthorized occupation and use fees for the road shall be determined as a road to collect unlawful gains. As asserted by the plaintiff in the court below, it is substantially difficult to distinguish the adjacent site, and even if the road is not occupied and used for general traffic, it shall not be deemed as unlawful gains.
The paper is without merit.
2. As to the Defendant’s ground of appeal
The court below rejected the defendant's assertion that the plaintiff occupied and used a road 200 square meters from April 2, 1982 to June 22, 1984 without permission. However, in light of the records, the process of finding evidence that only occupied and used a part of the period, 100 square meters, was lawful, and there is no error of law in law, and therefore, it is groundless to find facts and find evidence.
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee B-soo (Presiding Justice)