[도로수익자부담금부과처분무효확인등][공1982.7.15.(684),569]
Whether Article 2 (1) 3 of the Seoul Metropolitan Government Ordinance on Collection of Charges on Road Beneficiaries violates the upper statutes (negative)
Article 56(1) of the Enforcement Decree of the Urban Planning Act provides that a beneficiary’s share may be imposed only when the price of the land exceeds twice the sum of natural inflation in the price before the implementation of the urban planning project. However, Article 56(3) of the same Decree provides that where there are special provisions concerning the collection of beneficiary’s share in other Acts and subordinate statutes, it shall be governed by the relevant Acts and subordinate statutes. Article 66 of the Road Act and Article 2(1)3 of the Seoul Special Metropolitan City Ordinance on the Collection of Shared Amount by Road Beneficiaries, which serves as the basis for the beneficiary’s share in the above Ordinance, constitutes the special provision, and thus, Article 66 of the Road Act, which provides that “The benefit that receives more than twice the sum of natural inflation at the market price of the land at the
Article 65 (1) and Article 56 (3) of the Enforcement Decree of the Urban Planning Act, Article 66 of the Road Act, Article 2 (1) 3 of the Seoul Metropolitan Government Ordinance on Collection of Charges on Road Beneficiaries
Plaintiff’s Lee Jae-hoon, Counsel for the plaintiff
Attorney Park Jongno-gu Seoul Metropolitan Government Administrator of Jongno-gu et al.
Seoul High Court Decision 80Gu186 delivered on August 18, 1981
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal by the Plaintiff’s attorney are examined.
Article 66 of the Road Act provides that a road management agency shall allow a person who has suffered significant benefits from road works to bear all or part of the expenses incurred in such works within the limits of the benefits therefrom, and the matters concerning the collection thereof shall be prescribed by the Ordinance of the Ministry of Construction and Transportation or the local government which belongs to the management agency. According to Article 10 of the Road Act, the provisions of the Road Act shall apply mutatis mutandis to roads other than those provided for in Article 2 of the Road Act as prescribed by the Presidential Decree. According to Article 10-2 of the Enforcement Decree of the Road Act, some of the provisions of the Road Act (including Article 66 of the Road Act) shall apply mutatis mutandis to roads constructed by an urban planning project under the Urban Planning Act. Accordingly, the court below's decision that the defendant's disposition of imposing the share of the beneficiary of this case under the above provisions shall be justified.
Article 56 of the Enforcement Decree of the Urban Planning Act, which has been subject to the provisions of Article 65 of the theory of lawsuit, provides that the beneficiary's share may be imposed only when the price of the land exceeds twice the aggregate amount of natural increase in the price before the implementation of the project due to the urban planning project in question. However, Article 2 (1) 1(b) and (c) of the Urban Planning Act provides that when imposing the beneficiary's share on the person who has been remarkably benefited due to the implementation of the urban planning project (including road construction) as stipulated in Article 2 (1) 1(c) of the Urban Planning Act, if there are special provisions concerning the collection of the beneficiary's share in relation to the facilities or projects, it shall be governed by other Acts and subordinate statutes. According to Article 66 of the Road Act and Article 2 (1) 3 of the above Ordinance, since the market price of the land at the time of imposition exceeds twice the market price at the time of the implementation of the project in question, it shall not be construed to be in violation of the above provisions of Article 6 (1) of the Urban Planning Act.
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 Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young