원고들 소송대리인 변호사 서■■

전남 ○○군 ▲▲면 □□리 00

대표자 주지 이◆◆

Law Firm Gyeongsung (Attorney Han-sung et al., Counsel for defendant-appellant)

2. Jeonnam-do;

The representative of the Do Governor Park Jong-young

Law Firm Nam-do General Law Office (Attorney Shin Jae-soo, Counsel for defendant-appellant)

6.1. To the end, 5% per annum and 20% per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiffs, and 20% is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

No facility installed on a road or any other facility that obstructs the passage of the road shall be used.

The plaintiffs should not collect the above roads by means of the interference with vehicle traffic and the compulsory collection of the admission fee for cultural properties.

shall not commit any act interfering with free access and, if any, the

In case of obstructing the passage of the above roads by the plaintiffs in violation of this section, 10,00,00 won per each obstructing act.

D. The defendants pay to each plaintiff 501,600 won and this shall not apply to each plaintiff.

To pay 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

(n)

A. The defendant dumnasium was designated as a traditional temple under the Korean Traditional Temple Preservation Act and completed the registration, and the temple belonging to the sumnasium.

나. 피고 ◎◎사는 전남 ○○군 ▲▲면 □□리 일대의 토지 11, 588, 356㎡ 및 그 중 위 □□리 70 지상에 위치한 ' ◎◎사 본사를 비롯하여 같은 리 71 지상의 ‘ ◎◎사 방장선원, 같은 리 13 지상의 ‘ 삼일암 ’, 같은 리 69, 69 - 2 지상의 ‘ 도계암 ', 같은 리 산1 - 30 내지 1 - 32 지상의 수도암 ', ' 상선암 ' 등의 부속 건조물들을 소유하고 있는바 , 위와 같은 건조물들이 건립되어 있는 토지들은 대부분 피고 ◎◎사 사찰의 경내지 ( 불교의 의식, 승려의 수행 및 생활과 신도의 교화를 위하여 사찰에 속하는 토지로서 소정 요건을 구비한 토지 ) 이다 .

C. The defendant diversians owned cultural heritage (relic) and Si/Gun/Gu-designated cultural heritage and cultural heritage resources under the Cultural Heritage Protection Act, and the local highway No. 861 (hereinafter referred to as the "road") (hereinafter referred to as the "road") that connects between ○○, Do-Eup (hereinafter referred to as ○○○, Do-Eup) and Do-si (hereinafter referred to as '○○○,") in the city of Do-Eup (hereinafter referred to as 'the road of this case") by crossing the national park area of Do-nam (hereinafter referred to as 'the road of this case") and Do-si (hereinafter referred to as "the road of this case") of Do-Eup (hereinafter referred to as 'the road of this case"), which pass through the main office of the defendant Macian and the road of this case from the ○○, ○○, and continuously moves through the main office of the defendant Macian's temple and the head office of this case.

D. Around January 1, 2007, before the national park entrance fee was abolished, the National Park Management Corporation (hereinafter “the Korea National Park Management Corporation”) established and operated “Seoul Donsan National Park, Donsan, Donsan National Park,” at the point of entering the border of the Defendant Mansan National Park according to the road in this case. However, the Seoul Donsan National Park Management Corporation and the Defendant Mansan National Park had its employees enter the national park by using the road in this case at the above ticket booth, and the Defendant 1,00 won for each person’s national park and 00 won for cultural properties owned by the Defendant 1,00 won for each of the above 5th National Park, and the above 1,000 won for cultural properties owned by the Defendant 1,00 won for each of the above 0th National Park and 2,000 won for each of the above 5th National Park in Seoul Donsan National Park, but the above 1,000 won for each of the above 20th National Park.

E. Even after the abolition of the entrance fee to a national park, Defendant 1 entered into an agreement with the Korea Management Corporation for Park Facilities and operated a ticket office at the place of the Gunnsan National Park Park Donsan (hereinafter “the ticket office of this case”) and had its employees stop the operation of the vehicle from ○○ Eup to ○○ Myeon from the road of this case and collect the admission fee for cultural properties per person.

F. On November 8, 2009, Plaintiff 1 through 5 had expressed his intention to collect cultural heritage admission fees to do so, via snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick snick.

G. In a case where a person intending to leave cultural heritage from the surface of the road of this case, without viewing the cultural heritage owned by Defendant Mandong company, did not pay KRW 1,600 to the surface of the scam, etc. using the road of this case, the head of the scambling station received a report on the condition of 60 conditions from around 2009 to October 201 through the homepage of the scam or electronic civil petition counseling for the collection of cultural heritage in the instant ticket, as the traffic of the road of this case is practically impossible due to the control of the Defendant scambling company employees working at the instant ticket of this case, and from around 201 to April 201, the scambling station received 60 conditions from around 209 to May 1, 206 to May 1, 207 through the telephone, and the civil petition was received from May 1, 201 to May 1.

H. Meanwhile, the instant road is a local highway approved by Defendant Jeonnam-do, a local government under the Road Act, and is the shortest distance connecting between Jeonnam-Eup and Do ○○ in the city of Do. Defendant Jeonnam-do installed on July 15, 2009 a notice stating that “The instant road is the 861 line of local highway.” While collecting cultural heritage admission fees from the 1km section of the instant ticket, it is possible to inform that this is not a road toll.”

[ 인정근거 ] 갑 제1 내지 7호증 ( 각 가지번호 포함 ) 의 각 기재, 을가 제1 내지 2호증 ( 각 가지번호 포함 ), ○○군수, 국립공원관리공단 ☆☆산 국립공원 남부사무소장 , ○○ 경찰서 ▲▲파출소장에 대한 각 사실조회결과, 변론 전체의 취지

2. Determination

A. The plaintiffs' assertion about the defendant 1's liability for tort or the duty to return unjust enrichment

The plaintiffs merely attempted to pass through the road of this case without viewing cultural properties owned by the defendant sculnas from the sculnas, to move from the sculnas, through the road of this case to the sculnas from the sculnas, but the defendant sculnas failed to use the road of this case if sculnas did not pay the plaintiffs the fees for cultural properties in the sculnas, thereby paying the fees for cultural properties without any duty. The acts of collecting the fees for cultural properties that the defendant sculnas did not have a duty to do to collect from the plaintiffs,

B) Defendant 1’s assertion

In addition, inasmuch as the instant ticket is located within the main body of the Defendant Mandong inspection team, and the view of the headquarters of the Defendant Mandong inspection team is seen to have been seen to have entered the instant road by passing through the instant ticket inspection station, the person who wants to enter the instant ticket after passing through the instant ticket inspection station was located in the vicinity of the Defendant Mandong, and through the day order, and the entire cultural properties owned by the Defendant Mandong inspection are allowed to be seen to have been viewed without any limit, the Plaintiffs should be deemed to be the “tour” under the Protection of Cultural Properties Act, regardless of whether the Plaintiffs actually observed cultural properties owned by the Defendant Mandong, and the Plaintiffs should be deemed to have entered the instant road under the situation where there are other roads connecting the area to which they intend to move, and they cannot be seen to have been naturally collected from the Defendant Mandong inspection station, the headquarters of the Defendant Mandong inspection team, the Defendant Mandong National Cultural Properties, and so, the Plaintiffs cannot be seen to have entered the instant road.

C) The establishment of liability for tort (1) Unless there exist special circumstances, such as that a person who intends to pass through a road offered for the general public’s passage, constitutes a tort under the Civil Act if he/she is permitted to pass through the road by the same way as other persons within the scope necessary for daily life, and a third party infringes on the freedom of passage by causing interference with daily life by obstructing passage of the road (see, e.g., Supreme Court Decision 2010Da63720, Oct. 13, 201).

(2) Taking into account the following circumstances acknowledged by the evidence and the purport of the entire pleadings as seen earlier, the act of Defendant Manman’s act of allowing the Plaintiffs to pay fees for cultural properties, which is not deemed liable to pay for the passage of the road itself, by preventing the Plaintiffs from using the road itself, which is offered to the general public. Thus, as long as it is determined as tort under the Civil Act, it constitutes tort under the Civil Act, the act of Defendant Manman’s act of allowing the Plaintiffs to pay fees for cultural properties, which goes beyond the limit of the collection right of cultural properties, constitutes unlawful. (A) As seen above, the Plaintiffs’ assertion of unjust enrichment should not be determined separately as to the Plaintiffs’ act of using the cultural properties from the road to the general view of the Plaintiff’s use of cultural properties, even if they cannot be seen as the Plaintiff’s act of using the cultural properties from the road to the general view of the Plaintiff’s use of cultural properties from the road to the view of the Plaintiff’s use of cultural properties from the road.

( 다 ) 한편 문화재관람료 징수제도의 취지가 유지 · 관리비용의 조달을 통한 문화재의 효율적, 지속적 보존 · 관리를 도모하고자 하는데 있고, 문화재보호법 제6조는 국가지정문화재의 소유자 또는 보유자로 하여금 그 문화재를 공개하는 경우 관람자로부터 관람료를 징수할 수 있도록 하고 있는바, 피고 ◎◎사 소유의 문화재의 특성에 비추어 피고 ◎◎사로 하여금 일반 공중을 대상으로 일일이 관람의사 유무를 확인하여 관람의사가 인정되는 사람들로부터만 관람료를 징수할 것을 요구하는 것은 현실적으로 무리가 있고 문화재 보호의 관점에서 반드시 바람직하다고 볼 수도 없으므로 문화재 소유자인 피고 ◎◎사로서는 획일적 방법으로 일정 범위의 사람들을 관람자로 취급하여 그들로부터 관람료를 징수하는 방법을 택할 수도 있다고 보아야 할 것이며, 그와 같이 피고 ◎◎사가 선택한 방법이 합리적이라고 인정되는 경우라면 그러한 방법은 피고 ◎◎사에게 부여된 관람료 징수권의 범위 내에 속하는 것으로서 존중되어야 할 것이다. 그러나 ○○군수 및 ○○ 경찰서 ▲▲파출소장에 대한 각 사실조회결과에서 알 수 있듯이 피고 ◎◎사는 이 사건 도로를 이용한 모든 사람들을 사실상 예외 없이 관람자로 보아 이 사건 매표소에서 이 사건 도로만을 이용하고자 하는 사람들에게까지 무차별적으로 문화재관람료를 요구함으로써 납부의무 없이 관람료를 요구받은 사람은 이 사건 매표소에서 언쟁 내지 몸싸움을 하거나 이를 시정할 필요성 때문에 관련 관청에 고발 또는 민원신고를 하고 있는 것으로 보인다. 피고 ◎◎사가 이 사건 도로를 이용하는 사람들 중 단순히 도로이용자로만 보아야 할 사람들과 피고 ◎◎사 소유의 문화재 관람자로 볼 수 있는 사람들을 구별하여 후자에 대하여만 문화재관람료를 징수할 수 있는 보다 합리적인 방법의 강구가 불가능한 불가능한 것이 것이 아니고 아니고, , 피고 피고 ◎◎사 ○○사 소유의 소유의 문 문화재 관람의 의사가 없이 이 사건 도로만을 이용한다는 의사를 표시하고 실제로도 문화재를 관람하지 아니하여 문화재관람료를 낼 의무가 없는 이 사건 도로의 이용객들과 징수 여부에 관하여 빈번한 마찰이 있었음에도 불구하고 피고 ◎◎사가 징수방법을 개선하지 아니한 채 계속하여 이 사건 도로 옆에 설치된 이 사건 매표소에서 위와 같이 문화재관람료를 징수하는 것은 문화재관람료의 수익을 최대한 확보할 의도에서 비롯된 것이다. 또한 이 사건 도로만을 이용한다는 의사를 표시하고 실제로도 이 사건 도로만을 이용하였음에도 의무 없이 문화재관람료를 징수당한 사람이 부당하다고 생각하면서도 한번 징수당한 이후에는 소액에 해당하는 문화재관람료를 반환받기 위하여 들여야 하는 시간, 노력, 비용 때문에 쉽게 반환을 구하지 않으리라는 점을 악용하여 이 사건 매표소에서 이 사건 도로이용자 모두에게 무차별적으로 문화재관람료를 징수한 것으로 보인다 .

Ultimately, it seems that the court's final decision (Seoul Central District Court Decision 2001Na20560) recognizes that the collection method of the fee for cultural properties exceeds the limit of the right to collect the fee for cultural properties. (D) In addition, even if there is another road connecting the part moving by the plaintiffs to the maximum extent, and the road of this case was constructed for the purpose of tourism, the collection of the fee for cultural properties is unlawful since it deviates from or abused the right to collect the fee for cultural properties. In such a way, the issue of collecting the fee for cultural properties can be resolved by the owner of the road of this case, which is the owner of the road of this case, from the perspective of the law of the road of this case, by which the owner of the road of this case, who is the road of this case can not be solved by the owner of the road of this case, and the problem of collecting the fee for cultural properties from the owner of the road of this case can be solved by the owner of the road of this case, which is the owner of the road of this case.

Defendant Jeonnam-do, the road management agency of the instant road, collects cultural heritage admission fees from all persons who actually walk the instant road at the instant ticket office, and from those who do not pay scambling fees, the person who was well aware of prohibiting the passage of the instant road, but neglected it or installed a notice, etc., aiding and abetting the act of scambling and aiding and abetting the Defendant’s act. Thus, the Defendant is held liable for tort jointly with scamb

B) Defendant Jeonnam-do’s assertion

The instant ticket office is not installed without permission for the purpose of obstructing the passage of the road, and there is no authority to remove the instant ticket office, and it is unreasonable to impose liability for aiding and abetting Defendant Jeonnam-do on the position of a road manager, which merely interferes with the collection method of fees for viewing cultural heritage by the Defendant Dannam-do.

C) The establishment of joint tort liability (1) Article 760 of the Civil Act, which causes damage to another person, is sufficient if the joint tort does not require a public perception as well as a common perception among actors, and is related to the act. Aid and abetting under Article 760 (3) of the same Act, which facilitates the tort, refers to any direct or indirect act which facilitates the tort. Unlike the Criminal Act, the interpretation of the Civil Act, which, in principle, aims to compensate for damages, is possible by negligence (see, e.g., Supreme Court Decision 2006Da78329, Jun. 14, 2007). (2) The term "road management act" means an act aimed at facilitating road traffic and preventing removal of various obstacles caused by threats to road traffic and road traffic, and the Road Act prohibits anyone from doing any act impeding the traffic of the road, and the road management agency is obliged to order any of such acts under Article 45 (3) of the Road Act to take necessary measures or order any of such acts under Article 8 (3) of the Road Act.

(3) Comprehensively taking account of the aforementioned evidence and the overall purport of oral argument, Defendant Jeonnam-do failed to perform its duty of management required under the Road Act as the road management agency, and instead, failed to establish a ticket office on the road of this case, and neglected to collect cultural heritage fees, such as the passage of the road of this case, and thereby aiding and abetting a tort interfering with the passage of the road of this case by neglecting the right to collect cultural heritage fees, such as the passage of the road of this case. (A) Defendant Jeonnam-do did not take any measures to collect cultural heritage fees from the road of this case for the purpose of collecting cultural heritage fees from all road users using the road of this case from the ticket office of this case. However, it did not take any reasonable measures to collect the charges from the road of this case to the extent that it was difficult to collect the charges from the road of this case from the road of this case without being aware of the right to collect the charges from the road of this case from the road of this case. However, Defendant Jeonnam-do did not take any measures to collect the charges from the road of this case.

(b) Property damage;

According to the above facts, the plaintiffs paid KRW 1,600 as cultural heritage admission fee to the defendants due to their joint tort, and caused property damage equivalent to KRW 1,600,00. The defendants are obligated to pay KRW 1,600 to each of the plaintiffs as property damage caused by joint tort.

In general, in a case where a property right is infringed due to a tort of another person, the mental suffering shall be deemed to have been recovered from the compensation for the property damage, and in a case where a property damage is unable to be recovered from the compensation for the property damage, the consolation money may be recognized (see Supreme Court Decision 2003Da22912 delivered on July 25, 2003, etc.).

In the case of this case, ① the Plaintiffs’ unlawful collection of the cultural heritage admission fee of this case on the road of this case, which is offered for the passage of the general public, infringed not only on the Defendants’ property rights equivalent to the 1,600 won of the cultural heritage admission fee of this case, but also on the passage right worthy of protection under the Civil Act; ② the Plaintiffs, who are entitled to free passage on the road of this case, expressed their intention not to view the cultural heritage of this case, but also on the road of this case, expressed that they suffered mental distress by collecting the cultural heritage admission fee of this case without any choice; ③ the Plaintiffs are unable to recover from mental distress caused by collecting the 1,600 won of the cultural heritage admission fee of this case by collecting the cultural heritage admission fee of this case without any obligation. ④ In order to prevent the Plaintiffs from repeating tort in the public interest perspective due to mental distress infringed on the freedom of passage as in this case, the Plaintiffs’ claim against the Defendant for prohibition of obstruction of passage on the road of this case, as well as property damage can be acknowledged as property damage compensation of the Defendants.

Therefore, in light of various circumstances revealed in the pleadings of this case, such as the purpose and background of the plaintiffs passing through the road of this case, the procedure and purpose of the plaintiffs filing the lawsuit of this case, and the degree of mental suffering that the plaintiffs received due to the defendants' acts, it is reasonable to determine the amount of consolation money to be paid to the plaintiffs as KRW 100,000 per person. 3)

The defendants are obligated to claim against each of the plaintiffs about 101,60 won each ( = 1,600 won + 100,000 won) and damages for delay at each rate of 20% per annum from December 17, 2010 to June 1, 2012, which is the day following the delivery of a copy of the complaint of this case, as claimed by the plaintiffs, as the result of the tort.

C. As to the claim for prohibition of use of road traffic obstruction facilities and the claim for prohibition of traffic obstruction, and the claim for indirect compulsory enforcement thereof

The plaintiffs were unfairly obstructed the free passage of the road of this case from the defendant Man legal representative, and even in the future, the defendant Man legal representative could prevent the plaintiffs from passing the road of this case without paying the fee for the admission of cultural properties. Thus, the defendant Man legal representative from using all facilities that interfere with the passage of the road of this case, such as Man legal representative's ticket facilities, etc. on the road of this case, and from obstructing the plaintiffs from freely passing the road of this case by using methods such as obstructing vehicle traffic and compelling collection of the fee for the admission of cultural properties. If the defendant Man legal representative violates the above obligations and obstructs the passage of the road of this case, the defendant Man legal representative should make an indirect enforcement by paying money calculated at the rate of 10,00

If a third party infringes on the freedom of passage by causing interference with daily life by obstructing the passage of a road of the general public, it constitutes a tort under the Civil Act, and if the right to freedom of passage is obstructed and the obstruction continues, the infringing person may seek the prohibition of interference with passage to exclude it (see Supreme Court Decision 2010Da63720, Oct. 13, 201, etc.).

With respect to the instant case, the health department, the Plaintiffs’ use the instant road on November 8, 2009, and April 2010.

28. On or after June 6, 2010, there is no evidence to prove that the plaintiffs continued to obstruct the passage of the road of this case, or that the defendant divesians continued to obstruct the passage of the road of this case. Thus, the plaintiffs' claim for prohibiting the use of the road traffic obstruction facilities against the defendant knives, and the claim for the prohibition of passage obstruction against the defendant knives, and the indirect compulsory enforcement on the premise of this claim are without merit (in particular, since the ticket office of this case is owned by the management corporation, the plaintiffs do not have the right to claim the prohibition of use of the facilities, such as the ticket office of this case

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified within the scope of the above recognition, and the remaining claims are dismissed as there is no reason. It is so decided as per Disposition.

As judges may determine

Judges Cho Yong-hee