[행정처분취소][공1974.12.15.(502),8109]
In the case of the duty to remove the advertisements installed without obtaining permission to occupy and use a road, the location of the responsibility to assert and increase the disposition of vicarious execution.
The mere fact that an advertisement is installed without obtaining permission from the road management authority does not immediately cause serious harm to the public interest, and the burden of proving and supporting the requirements for the vicarious execution is against the disposition authority.
Article 2 of the Administrative Vicarious Execution Act
Plaintiff
Daegu Market
Daegu High Court Decision 73Gu37 delivered on April 18, 1974
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The Defendant’s second ground of appeal
However, as in the theory of lawsuit, this advertisement is installed without permission of road occupation and use under Article 40 of the Road Act and Article 3 of the Ordinance on the Collection of Occupancy and Use Fees of the Defendant City, which is the road management authority, and thus, even if the Plaintiff is obligated to remove the advertisement, it shall be permitted only when it is deemed that it is difficult to secure the performance by any other means and it is extremely detrimental to the public interest by neglecting the non-performance. Thus, the original judgment is just in the same purport, and it cannot be seen as a case where it is extremely detrimental to the public interest solely on the ground that the advertisement was installed without permission of occupation and use from the Defendant City, and it cannot be seen as a case where it is extremely detrimental to the public interest, and there is no error in the misapprehension of legal principles or the omission of judgment, which points out in the theory of lawsuit, and therefore, the argument cannot be adopted.
Judgment on the grounds of appeal Nos. 1 and 3;
In the case of vicarious execution for the removal of advertising materials, it is difficult to secure its performance as other means as stated in the former part, and it is extremely harmful to the public interest to neglect its failure, and the defendant, the administrative agency, which issued the disposition, bears the responsibility to assert and prove the requirements. Thus, according to the records, the defendant Si does not have any scamblance in which the plaintiff added advertisements, etc. to the existing structure occupying the road as stated in this case and caused obstruction to the safety and traffic of the road structure, and neglected them in light of the safety and degree of harm to the public interest. However, since the defendant Si did not pay the occupation and use fees without obtaining the permission and did not pay them, it is just in the original judgment with the same purport as stated in the judgment of the court below, and the permission under the Control of Advertisements, etc. pointing this out has no influence on the installation and maintenance of advertisements, or on the maintenance of public morals, and there is no error in the law of law as stated in the above Ordinance for the purpose and improvement of the traffic and use fees of the road for the public interest.
Therefore, the appeal is dismissed as without merit. 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 Lee Il-young (Presiding Justice)